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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


1 

1 
I 

f 

SCHOOL  OF  LAW 
LIBRARY 


A 

TREATISE 


ON"    THE 


Practice  of  tl)c  (Huuvts 


■OF    THE 


STATE  OF  NEW-YORK! 


ADAPTED    TO  THE 


CODE  OF  PEOCEDUPiE, 


AS  AMENDED  BY  THE  ACT  OF  APRIL  11.  1&19,  AND  THE  RULES  OF 
THE  SUPREME  COURT. 


TO    WHICH    IS    ADDED,    THE 

PRACTICE  W  COURTS  OF  JUSTICES  OF  THE  PEACE. 


WITH    AN 


SlppenMi  of  |c5ractirQl  /orm0. 


BY  CLAUDIUS  L.  MONELL, 

Counsellor  at  Law:  > 


ALBANY : 

GOULD,    BANKS    AND    GOULD,    104    STATE- STEJIET. 

NEW-YORK  : 

BANKS,  GOULD   AND    CO.,   144    NASSAU-ST. 

1849. 


r 


Entered  acconlin^  to  act  of  Conjre?s,  in  the  ypar  one  thousand  eig-ht  hun- 
dred and  forty-nine,  by  Gour.D,  Hanks  and  Guui.d,  in  the  cleri..'s  office  of 
tlie  District  Court  of  the  Norliiern  District  of  A'ew-Yorlc. 


CHARLES  VAN  BENTHUYSEN', 

PRINTER,    ALB  ANT. 


1 

I 


NOTE. 


It  was  the  original  design  of  the  author  to  have  appended  to  this  Trea- 
tise a  large  number  of  Practical  Forms  ;  but  the  length  of  time  he  has 
necessarily  bestowed  upon  the  Practice,  has  abridged  his  opportunities 
for  preparing  Forms,  and  he  has  therefore  selected  such  subjects  only, 
and  made  such  Forms  as  the  changes  in  the  Practice  seemed  to  require. 
Indeed,  upon  a  careful  examination  of  the  subject,  the  author  became 
satisfied  that  to  do  more  at  this  time  than  to  adapt  the  Forms  to  the  altera- 
tions produced  by  the  Code,  would  be  of  but  little  use  to  the  profession. 
Hence  he  has  left  out  all  such  Forms  used  in  the  old  practice  as  with 
slight  and  verbal  alterations  may  be  made  to  apply  to  the  present  mode  of 
procedure.  Upon  a  revision  of  the  work,  however,  should  it  be  at- 
tempted, all  the  Forms  will  be  embraced  that  can  be  required  in  prac- 
tice. 


TO    THE 

HONORABLE  IRA  HARRIS, 

JUSTICE     OF     THE     SUPREME     COURT, 

(ll)is  teatlse 

ON    THE    PRACTICE     OF    THE    COURTS    OF    THIS    STATE, 
IS    BY    HIS    PERMISSION, 

Hfspcctfullp  Insfribeli  bg  tl)c  ^utljor. 

As    AN    EXPRESSION    OF    HIS    GRATITUDE    FOR    THE    INTEREST 

HE    HAS    TAKEN    IN    THE    PROGRESS    OF    THE    WORK, 

AND    FOR  THE    VALUABLE    SUGGESTIONS    HE 

HAS    MADE    IN    ITS    COMPILATION: 

AND    IN    TESTIMONY    OF    THE    HIGH    RESPECT    OF    THE 

AUTHOR    FOR    HIS    EMINENT     QUALITIES 

AS    A    JUDGE    AND    A    MAN. 


PREFACE. 


The  Constitution  adopted  on  the  ninth  of  August, 
1846,  required  the  Legislature  at  its  first  session  after 
the  adoption  thereof,  to  provide  for  the  appointment 
of  three  commissioners,  whose  duty  it  should  be  to 
revise,  reform,  simplify  and  abridge  the  rules  and 
practice,  pleadings,  forms  and  proceedings  of  the 
courts  of  record  of  this  State.  Art,  vi,  §  24, 

In  conformity  to  this  requisition,  the  Legislatur-e 
at  its  session  in  1847,  appointed  three  gentlemen  of 
the  profession,  (Messrs  Arphaxad  Loomis,  Nicholas 
Hill,  Jr,  and  David  Graham,)  to  discharge  tlie 
onerous  and  novel  duty  required  by  the  Constitution. 
These  gentlemen  entered  upon  and  continued  in  the 
performance  of  their  duties  for  several  months, 
when  one  of  the  Commissioners  (Mr.  Hill)  resigned 
and  Mr.  David  D.  Field,  was  appointed  in  his  place. 

The  result  of  their  labors  was  made  known  to  the 
Legislature,  at  its  session  in  1848,  when  the  Com- 
missioners reported  "a  Code  of  Procedure,"  which 
with  slight  alterations,  was  adopted  late  in  that  ses- 
sion. 


yni  PREFACE. 

The  profession  were  not  prepared  for  a  change  so 
radical,  comprehensive  and  entire,  and  looked  with 
distrust  upon  the  new  system.  That  it  overthrew 
all  pre-acquired  knowledge  of  practice,  was  plain  ; 
and  the  older  members  of  the  bar,  equally  with  the 
younger,  were  at  once  thrown  upon  a  wide  field  of 
uncertainty  and  doubt,  with  few  of  the  lights  of 
past  experience  to  aid  them. 

That  the  Code  was  defective,  not  in  its  general 
scope,  bvit  in  its  details,  was  not  questioned  by 
any.  Indeed,  it  was  readily  admitted,  that  a  system 
so  novels  could  not  be  perfected,  until  time  and  ex- 
perience had  developed,  and  subsequent  legislation 
had  supplied  what  was  wanting  to  make  it  com- 
plete. The  experience  of  a  few  months,  served  to 
disclose  many  of  these  defects,  and  the  Legislature 
in  1849,  enacted  a  large  body  of  amendments,  which 
aimed  at  removing  many  of  the  objectionable  pro- 
visions contained  in  the  Code. 

One  of  the  errors  of  the  Code,  and  which  render- 
ed the  working  of  the  system  less  pliable  in  the 
hands  of  the  courts,  was  the  absence  of  any  power 
in  the  judges^  to  prescribe  rules  to  carry  into  effect 
its  provisions.  This  error  was  corrected  by  the 
amendments  of  1849,  which  required  the  judges  to 
meet  and  adopt  rules  for  the  governance  of  the 
courts  throughout  the  State. 

In  accordance  with  tliis  provision,  the  judges  as- 
sembled in  August,  1849,  and  adopted  rules  which 


PREFACE.  IX 

effectually  put  in  motion  the  machinery  of  the 
courts. 

It  is  believed,  that  at  this  time,  a  Treatise  on  the 
practice  under  the  Code,  adapted  to  the  rules  of  the 

Supreme  Court,  will  not  be  unacceptable  to  the  pro- 
fession and  the  student.  Its  importance  will  be 
the  better  appreciated,  when  it  is  remembered  that 
the  "  Code"  is  not  an  embodiment  of  the  whole 
practice,  but  of  a  part  only;  much  that  appertained 
to  the  former  system,  being  retained,  with  such 
changes  only  as  were  rendered  necessar}'"  to  make 
both  harmonize. 

To  bring  together  the  whole  body  of  the  practice 
in  a  simple  and  succinct  form,  would,  doubtless,  shed 
some  light  upon  the  darkened  path  to  justice,  and  to 
accamplish  this,  has  been  the  aim  of  the  author. 
How  far  he  has  been  successful,  he  cannot  be  the 
judge. 

To  a  profession  who  so  well  understand  the  diffi- 
culties he  has  had  to  encounter,  the  author  looks 
for  every  indulgence,  and  he  will  be  satisfied,  if  in 
any  degree,  he  has  lessened  the  labors  or  aided  the 
researches  of  his  brethren  in  their  investigations  into 
a  new,  and  as  yet  untried  practice. 

Should  the  present  work  meet  the  immediate 
demands  of  the  profession,  for  a  guide  in  conducting 
a  suit,  it  is  the  author's  design,  at  no  very  distant 
day,  Avhen  the  system  shall  have  become  better  un- 
derstood, and  been  established  upon  a  firm  basis, 


X  PREFACE. 

unshaken  by  the  conflict  of  opinion  and  decision, 
to  revise  the  present  volume,  and  bring  together  in 
a  body,  the  entire  practice  of  the  courts  of  this 
State. 

Hudson,  September,  1849. 


TABLE  OF  CONTENTS. 


PAET  I. 

Of  Civil  Actions  and  Special  Proceedlngs. 

CHAPTER  I. 

Section    i.     Of  civil  actions. 
Section  ii.     Of  criminal  actions. 

CHAPTER  II. 
Of  Special  Proceedings. 

CHAPTER  III. 

0/  the  Parties  to  the  Action,  and  herein  of  Proceedings  zipon  the 
Death,  Marriage  or  other  BisaUUty  or  Transfer  of  Interest  du- 
ring the  Pendency  of  the  Action. 

Section   i.  Of  the  party  plaintiff. 
Who  must  be  plaintiff. 
Married  women. 
Infants. 

Several  plaintiffs. 
Misjoinder. 
Death. 
In  actions  ex  delicto. 


Xii  CONTENTS. 

Section  11.  Of  the  effectof  thenonjoinder  or  misjoinder  of  plaintiffs. 
Nonjoinder. 
Misjoinder. 

Section  hi.  Of  the  party  defendant. 

Who  must  be  defendant. 

Feme  covert. 

Husband  and  wife. 

Remote  and  contingent  interests. 

Corporators  and  dormant  partners. 

Infants. 

Actions  on  bills  of  exchange  and  promissory  notes. 

Actions  ex  delicto. 
Section  iv.  Of  the  effect  of  nonjoinder  or  misjoinder  of  defendants. 

Nonjoinder. 

Misjoinder. 

Determining  controversy  as  to  parties. 

Section  v.  Of  the  change  of  parties,  and  herein  of  the  effect  upon 
the  action. 
Sole  plaintiff. 
Transfer  of  interest. 
Several  plaintiffs  or  defendants. 
Motion  when  made. 
The  affidavit. 
Motion  how  made. 
Who  may  make  the  motion. 
Action  how  continued,  after  one  year  has  elapsed. 

CHAPTER  IV. 

Of  the  Place  of  Thial. 

Section  i.  Of  actions,  which  must  be  tried  in  the  county  where  the 
subject  of  the  action  is  situated. 

Section  ii.  Of  actions,  which  must  be  tried  in  the  county  where 
the  cause  or  some  part  thereof,  arose. 

Section  hi.  Of  actions  which  must  be  tried  in  the  county  in  which 
the  parties  or  any  of  them  reside  at  the  commence- 
ment of  the  action. 


CONTENTS.  XIII 

Section  IV.  Of  the  change  of  the  place  of  trial. 
How  obtained. 
Ground. 
When  made. 
Staying  proceedings. 

CHAPTER  V. 

Of  the,  General  Rules  of  Pleading. 

Introductory  remarks. 

Section  t.   Of  the  pleadings,  and  herein  of  what  pleadings  are. 

Section  ii.  Of  What  will  be  sufficient  in  a  pleading. 

Section  III.  Of  the  construction  of   pleadings,  and  herein  of  the 

effect  of  pleadings. 
Section  iv.  Of  mistakes  in  pleadings,  and  herein  of  amendments 
of  pleading. 

Upon  what  terms. 

Affidavit.v 

•Amendments  of  course. 

Amendment  of  summons. 

Section  v.  Of  the  different  causes  of  action,  that  may  be  included 
in  one  complaint,  and  herein  of  the  misjoinder  of 
actions. 

PART  II. 

Of  the  Commencement,  Prosecution,  and  Defence  of 

Actions. 

Introductory  Remtirks. 

CHAPTER  i. 

Of  the  Commencevient  of  the  Action,  and  the  Proceedings  on  the 
part  of  the  Plaintiff,  to  the  Answer  or  Demurrer  of  the  Defend- 
aivt,  or  to,  a7id  including  Judgment  for  wa7it  of  an  Answer. 

Section    i.  Of  the  mode  of  commencing  the  action. 


XIV  CONTENTS. 

Section  ii.  Of  arrest  and  bail. 

Obtaining  the  order  of  arrest. 
Affidavit  to  obtain  the  order. 
By  whom  to  be  sworn  to. 
The  order  when  made 
Contents  of  order. 
The  undertaking. 
Arresting  the  defendant. 
Giving  bail. 
Qualifications  of  bail. 
Exception  to  bail. 
Justifying  bail. 
Other  bail. 

Manner  of  justifying. 
Filing  undertaking. 
Liability  of  sheriff. 
Liability  of  bail. 
Surrender  of  bail. 
Deposit  of  money. 
Vacating  order  of  arrest. 

Section  III.  Of  the  claim  and  delivery  of  personal  property. 
Affidavit  to  be  made. 
Affidavit  what  to  contain. 
The  notice. 
The  undertaking. 
Taking  the  property. 

Defendant  requiring  the  return  of  property. 
Delivering  of  the  property  to  the  plaintiff. 
Justifying  sureties. 
Claiming  property. 
Return  of  sheriff. 

Section  iv.  Of  the  injunction. 

Cases  in  which  allowed. 

Injunction  when  applied  for. 

Who  may  grant  injunction. 

The  affidavit. 

The  security. 

Filing  the  undertaking. 

Injunction  against  corporations. 

Application  to  vacate  or  modify  order. 


CONTENTS.  XV 

Section  v.  Of  the  attachment. 

Attachment  when  applied   for. 

Who  may  grtint  the  attachment. 

The  affidavit. 

The  security. 

Attachment  how  and  by  whom  executed. 

Perishable  property. 

Property  claimed  by  another. 

Suits  by  sheriff.  ~ 

Satisfying  judgment. 

Judgment  for  defendant. 

Motion  to  discharge  attachment. 

Filing  warrant. 

Section  vi.  Of  the  summons. 

What  the  summons  must  contain. 

Limiting  time  of  service  of. 
Section  vii.  Of  the  complaint. 

General  rules. 

Names  of  parties. 

Contents  of  the  complaint. 

Subscribing  the  complaint. 

Verifying  the  complaint. 

Amending  complaint. 

Supplemental  complaint.  . 

Filing  complaint. 
Section  viii.  Of  the  filing  and  service  of  the   summons  and  com- 
plaint, and  of  the  proof  of  service. 

When  service  of  complaint  is  proper. 

Mortgage  and  partition  cases. 

Service  how  made. 

Upon  corporations. 

Upon  minors. 

Upon  idiots,  insane  persons,  and  habitual  drunkards. 

Upon  non-resident  and  concealed   defendants. 

Affidavit  of  the  facts. 

The  order. 

Filing. 

Service  out  of  the  state. 

Defendant's  appearance  and  answer. 

Service  upon  some,  but  not  upon  all  the  defendants. 


XVI  CONTENTS. 

Who  may  serve  the  summons. 
Proof  of  service. 

Section  ix.  Of  the  judgment  upon  failure  to  answer. 

Actions  arising  on  contracts  for  the  recovery  o'  money 

only. 
Other  actions. 

Manner  of  entering  judgment. 
Judgment  roll. 

CHAPTER  II. 

Of  the,  Proceedings  on  the  'part  of  the  Defendant,  previous  to  Aytswer- 

ing  or  Demurring. 

Section   i.  Of  obtaining  a  copy  of  the  complaint. 
''  Case  of  personal  service  of  the  summons. 

In  cases  of  other  than  personal  service  of  the  summons. 

Section  ii.  Of  the  offer  of  the  defendant  to  compromise. 
The  notice. 

Acceptance  of  the  offer. 
Non-acceptance  of  the  offer. 

Section  hi.  Of  the  inspection  of  writings. 

Section  iv.  Of  procuring  a  copy  of  an  account  alleged  in  the  com- 
plaint. 
How  procured. 

Consequences  of  not  furnishing. 
Further  or  more  particular  bill. 
Motion  to  strike  out  irrelevant  or  redundant  matter. 


CHAPTER  III. 

Of  the  Demurrer  to  the  Complaint,  a7id  herein  of  Frivolous  De- 
murrers. 

Section   i.  Of  the  grounds  of  demurrer. 
Want  of  jurisdiction. 
Want  of  legal  capacity  to  sue. 
Another  action  pending. 
Defect  of  parties. 


CONTENTS.  XVII 

Misjoinder  of  parties. 
Insufficient  cause  of  action. 

Section  ii.  Of  drawing  and  serving  the  demurrer,  &c. 
Drawing  demurrer. 
Filing  and  serving  demurrer. 
Enlarging  time  to  demur. 
Amending  complaint  after  demurrer. 
Of  frivolous  demurrers. 

CHAPTER  IV. 

Of  the  Ansioer  of  the  Defendant,  and  the  Reply  of  the  Plaintiff. 

Introductory  Remarks. 

Section   i.  Of  the  answer  and  its  incidents. 
What  to  contain. 
Verifying  answer. 
Sham  answers. 

Irrelevant  and  redundant  matter  in  an  answer. 
Filing  and  serving  answer. 
Enlarging  time  to  answer. 
Answering  amended  complaint. 
Demurring  to  answer. 

Section  ii.  Of  the  reply  and  its  incidents. 
To  what  the  plaintiff  may  reply. 
Verifying  reply. 

Irrelevant  and  redundant  matter  in  a  reply. 
Enlarging  time  to  reply. 
Filing  and  serving  reply. 
Effect  of  reply. 
Effect  of  not  replying. 
Replying  to  amended  answer. 
Demurrer  to  reply.  , 

CHAPTER  V. 

Of  the  Proceedings  to  Trial,   Verdict  and  Judgment, 

Section  i.    Of  the  issue. 

Issues  of  law. 

Issues  of  fact. 
Section  ii.  Of  the  examination  of  writings. 

B 


XVIII  CONTENTS.        " 

Section  hi.  Examination  of  witnesses  de  bene  esse  and  upon  com- 
mission, and  of  parties  before  trial. 

Examination  on  commission. 

Examination  de  bene  esse. 

Examination  of  a  party. 

Examination  before  the  trial. 

The  examination. 

Examination  at  the  trial. 

Effect  of  examination  of  a  party. 
Skction  IV.  Of  the  preparation  for  trial. 

Issues  how  tried. 
"      law. 
"      fact. 

Notice  of  trial. 

Copy  pleadings. 

Note  of  issue. 

Affidavit  of  merits. 

Notice  to  produce  papers. 

Subpoena  for  witness. 

Subpoena  ticket. 

Serving  subpoena. 

Subpoena  duces  tecum. 

Section  v.  Of  inquests. 

Section  vi.  Of  the  trial  by  the  court. 
The  trial. 
The  decision. 
Issue  of  law. 

Section  vii.Of  the  trial  by  jury. 
Opening  the  case. 
Affirmative  of  issue. 
Examination  of  witnesses. 
Stating  defence  and  examining  witnesses. 
Summing  up. 
Judges  charge. 
The  verdict. 
General  verdict. 
Special  verdict. 
Filing  and  entering  verdict. 
Judgment. 
Plaintiff  failing  to  appear. 


CONTENTS.  XIX 

Sectionviii.  Of  trial  by  referees. 

In  what  cases. 

Motion  for  reference. 

Affidavit. 

Notice  and  service. 

Affidavit  to  oppose. 

Appointing  referees. 

Order. 

Reference  at  the  circuit. 

Notice  of  reference. 

Proceedings  on  reference. 

Adjournment. 

Report. 

Fees  of  referees. 

Judgment. 
Section  ix.  Of  the  trial  of  issues  of  law. 

What  are  issues  of  law. 

Notice  of  argument. 

Note  of  issue. 

Furnishing  papers. 

Argument. 

Decision. 
Section  x.  Of  the  judgment,  and  herein  of  the  manner  of  entering 
judgment. 

Judgment. 

Awarding  judgment. 

Costs. 

Manner  of  entering  judgment. 

Judgment  roll. 

Transcript. 

Section  XI.  Of  costs. 

Plaintiff's  costs. 

Costs  in  actions  on  promissory  notes. 

Defendant's  costs. 

Costs  in  the  discretion  of  the  court. 

Costs  against  infant  plaintiff. 

Costs  by  or  against  administrators  and  trustees. 

Costs  in  actions  by  the  people. 

Costs  against  assignees. 

Costs  on  review  in  special  proceedings. 


XX  CONTENTS. 

Costs  of  putting  off  trial. 

Costs  of  motions. 

Amount  of  costs  recoverable. 
"  "  to  the  plaintiff. 

'«  "         to  the  defendant. 

Additional  allowances. 

Percentage  how  computed. 

How  ascertained. 

Interest  on  verdict. 

Costs  on  settlement  of  the  action. 

Clerks'  fees. 

Entering  costs  in  the  judgment. 

Adjusting  costs. 

Motion  to  correct  or  set  aside  adjustment. 
Section  xii.  Of  the  execution. 

Division  of  executions. 

Executions  against  the  property  of  the  judgment  debtor. 

Executions  against  the  person. 

Executions  for  the  delivery  of  the  possession  of  real  or 
personal  property. 

"When  execution  may  issue. 

Executions,  how  directed  and  what  to  contain. 

Executions  when  returnable. 

Enforcing  orders  or  judgments  other  than  for  the  pay- 
ment of  money. 

CHAPTER  VI. 

Of  Exceptions,  or  Case  to  Move  for  a  New  Trial,  or  lo  set  aside  a 
Nonsuit,  Special  Verdict,  and  Demurrer  to  Evidence. 

Section  i.  Of  exceptions. 

Grounds  of  exceptions. 

Suspending  judgment  in  order  to  prepare  exceptions. 

Preparing  exceptions. 

Proposing  amendments. 

Settling  exceptions. 

Setting  aside  exceptions. 

Filing  exceptions. 

Section  ii.  Case. 

Suspending  judgment  to  make  case. 


CONTENTS.  XXI 

Preparing  the  case. 

Amendments  to  settling  and  filing. 

Turning  case  into  special  verdict  or  exceptions. 

Section  hi.  Special  verdict. 

Staying  proceedings. 
Drawing  special  verdict. 
Settling  and  filing. 

Section  iv.  Reserving  case  for  argument,  or  further  consideration. 
Reserving  case  for  argument. 
Reserving  case  for  further  consideration. 

Section  v.  Case,  to  set  aside  report  of  referees. 
Drawing  case. 
Staying  proceedii^». 
Settling  case. 
Filing  case. 

Section  vi.  Demurrer  to  evidence. 

Demurrer — how  drawn  up. 
Settling  demurrer. 
Filing  demurrer. 

CHAPTER  VII. 

Of  Siibmitting  a  Controversy  without  Action. 

Preparing  case. 
Submission. 
Furnishing  papers. 
Judgment. 
Judgment  roll. 

CHAPTER  VIII. 

Of  Appeals  to  the  Supreme  Court  from  an  Inferior  Court. 

Section  i.  Appeal  when  and  hy  whom  taken,  and  from  what  judg- 
ments. 
When  taken. 
By  whom. 

From  what  judgments. 
Cases  arising  in  a  justice's  court. 
Parties  how  called. 


XXTI  CONTENTS. 

Section  ii.  Of  the  proceedings  to  perfect  the  appeal. 

Notice  of  appeal. 

Service. 

The  undertaking. 

Affidavit  annexed  to  undertaking. 

Serving  copy  undertaking. 

Excepting  to  sureties. 

Sureties  justifying. 

Other  sureties. 

Manner  of  justifying. 

Filing  undertaking. 
Section  in.  Of  transmitting  judgment  appealed  from    to   the  Su- 
preme Court. 

How  procured. 

When  transmitted. 

Obtaining  further  return. 
Section  iv.  Of  preparing  the  appeal  for  argument. 

Preparing  papers. 

Printing  appeal  and  points. 

Serving  appeal. 

Notice  of  argument. 

Note  of  issue. 

Making  up  calendar. 

Argument. 
Section  v.  Of  the  judgment  and  proceedings  thereon. 

Decision. 

Costs. 

Entering  judgment.     . 

CHAPTER  IX. 

Appeals  to  the  general  term  of  the  Supreme  Court,  from  judgments 

entered  under  the  direction  of  a  Single  Judge  of  the  same  Court. 
Section  i.  Appeal  when  and  by  whom  taken,  and  from  what  judg- 
ments or  orders. 

When  taken. 

By  whom. 

Appeals  from  judgments. 

Appeals  from  orders. 
Section  ii.  Of  the  proceedings  to  perfect  the  appeal. 

Notice  of  appeal. 

Service. 


CONTENTS.  XX  III 

The  undertaking. 

Affidavit  annexed  to  undertaking. 

Serving  copy  undertaking. 

Excepting  to  sureties. 

Sureties  justifying. 

Other  sureties. 

Manner  of  justifying. 

Filing  undertaking. 

Deposit. 
Section  hi.  Of  preparing  the  appeal  for  argument. 

Preparing  papers. 

Case  and  points. 

Printing  case  and  points. 

Serving  case. 

Notice  of  argument. 

Note  of  issue. 

Making  up  calendar. 

Argument. 
Sectiox  IV.  Of  the  judgment  and  proceedings  thereon. 

Decision. 

Costs. 

Entering  judgment. 

Section  v.  Of  turning  a  case  into  a  special  verdict  or  bill  of  excep- 
tions. 
Appeal  thereon. 

CHAPTER  X. 

Of  Appeals  from  the  Supreme  Court  to  the  Court  of  Appeals. 

Section  i.  In  what  cases  appeals  maybe  made. 
From  judgments. 
From  orders. 

Within  what  time  appeal  must  be  made. 
Who  may  bring  appeal. 
Joinder  of  parties. 
Excuses  for  not  joining. 
Entering  rule. 
Service  of  rule. 
Proceedings  on  default. 
Misjoinder. 
Against  whom. 
What  attorney  may  bring  appeal. 


XXIV  CONTENTS. 

Section  ii.  Of  the  proceedings  to  perfect  the  appeal. 

Notice  of  appeal. 

Service. 

The  undertaking. 

Affidavit  annexed  to  undertaking. 

Serving  copy  undertaking. 

Excepting  to  sureties. 

Sureties  justifying. 

Other  sureties. 

Manner  of  justifying. 

Filing  undertaking. 
Section  hi.  Of  transmitting  judgment  roll  or  order  appealed  frojii, 
to  the  court  of  appeals. 

When  transmitted. 

Obtaining  further  return. 
Section  iv.  Of  preparing  the  appeal  for  argument. 

Making  case. 

Printing  case. 

Serving  case. 

Notice  of  argument. 

Note  of  issue. 

Making  up  calendar. 

Argument. 

Submitting  case  on  printed  argument. 
Section  V.  Of  the  judgment  and   remittitur,   and  the  proceedings 
thereon  in  the  court  below. 

decision. 

Remittitur. 

Costs. 

Execution. 

PART  III. 

Of  Proceedings  in  Special  Cases. 
CHAPTER  I. 

Gf  Actions  for  Foreclosure  of  Mortgage  and  Sale  oj  Preinises. 

Section  i.  Object  of  the  action  and  how  commenced. 
Parties. 
Plaintiff. 
Defendant. 


CONTENTS.  XXV 

The  summons. 

The  complaint. 

Service  of  summons,  and   verification  and  service  of 

complaint. 
Notice  of  object  of  suit. 
Notice  of  pendency  of  suit. 
Section  ii.  Proceedings  upon  receipt  of  answer  of  defendant,  and 

when  no  answer  is  put  in. 
Proceedings  upon  receipt  of  answer. 
Proceedings  when  no   answer  is   put  in,  or  when   the 

answer  does  not   deny  any  material  fact  set  forth 

in  the  complaint. 
Application  for  order  of  reference. 
The  affidavit. 
The  order  of  reference. 

Application  for  judgment  of  foreclosure  and  sale. 
Affidavit  necessary. 
The  judgment. 
Judgment  roll. 
Sale. 

Time  and  place  of  sale. 
Notice  of  sale. 
Conditions  of  sale. 
Conducting  the  sale. 
Deed  to  the  purchaser. 
Report  of  sale. 
Confirming  report  of  sale. 
Section  hi.  Execution  for  deficiency. 

CHAPTER  II. 

Of  Actions  for  the  Partition  of  Real  Estate. 

Parties. 

The  summons. 

The  complaint. 

Verifying  complaint. 

Service  of  summons. 

Notice  of  object  of  suit. 

Notice  of  lis  pendens. 

Proceedings  if  answer  is  put  in. 

Proceedings   where   no   answer   has  been  put   in  ;  or, 

where  the  answer  does  not  deny  any  material  fact 

set  forth  in  the  complaint. 


XXVI  CONTENTS. 

Order  of  reference. 
Application  for  judgment. 

Costs. 

CHAPTER  III. 

Of  Actions  Jor  a  Divorce. 

Parties. 

The  summons. 

The  complaint. 

Verifying  complaint. 

Reference  to  take  proof. 

Answer. 

Hearing  and  judgment. 

Judgment. 

Costs. 

CHAPTER  IV. 

Proceedings  against  a  Judgment  Debtor,  after  a  Return  of  an  Ex- 
ecution, TJjisatisfied,  in  Whole  or  in  Part. 

Section    i.  In  what  cases  the  proceedings  may  be  instituted. 

Judgment, 

Return  of  execution. 

To  what  county  issued. 
Section  ii.  Proceedings  to  obtain  the  order. 

Who  may  grant  the  order. 

Affidavit. 

The  order  to  appear  and  answer. 

Order  forbidding  the  transfer  of  property. 

Warrant, 

The  aflidavit. 

Issuing  warrant. 

The  undertaking. 

Service  of  orders. 
Section  hi.  Of  the  examination  of  the  debtor  and  witnesses. 

Debtor. 

Witnesses. 

Certifying  examination. 
Section  iv.  Proceedings  after  examination. 

Order  to  apply  property. 


CONTENTS.  ,  XXVII 

Appointing  receiver. 
Powers  of  receiver. 
Duty  of  receiver. 
Costs. 
Section  v.  Of  the  proceedings  after  the  issuing  and  before  the  re- 
turn of  an  execution. 
The  affidavit. 

The  order  forbidding  transfer  of  property. 
Order  to  apply  property. 
Co5  ts. 

CHAPTER  V. 

Of  Special  Motions. 

Motion  for  judgment  in  cases  recorded  for  argument. 

Motion  for  verdicts  upon  special  verdicts. 

Motions  to  set  aside  report  of  referees,  where  only  part 

of  the  issue  is  reported  on. 
Preparing  papers. 
Serving  papers. 
Notice  of  argument. 
Notes  of  issue. 
Motions  when  made. 
Staying  proceedings. 
Affidavits. 
Notice  of  motion. 
Motion. 

Rule  or  order.  ,; 

Obtaining  rule  by  default,  ■ 

Costs. 

Costs  when  payable. 
Costs  how  collectable. 
Orders  granted  at  chambers. 

CAAPTER  VI. 

Of  Appeals  to  the  General  Term,  from  Orders  made  at  the  Special 
Term,  or  by  a  Single  Judge. 

In  what  cases. 
Appeal  when  taken. 


XXVIII  CONTENTS. 

Notice  of  appeal. 

Service  of  notice. 

Papers  to  be  used. 

Notice  of  hearing. 

Argument. 

Decision. 

Costs. 

Costs  when  payable. 

Costs  how  collectable. 


CHAPTER  VI. 

Of  the  Service  of  Notices  and  other  Payers  in  a  Suit. 

CHAPTER  VII. 

Of  Procuring  the  jippointment  of  a  Guardian  for  an  Infant  Party. 

Plaintiff. 

Defendant. 

Who  may  be  appointed. 

Appointment  how  made. 

Order. 

CHAPTER  VIII. 

Of  Judgment  on  Confession. 

CHAPTER  IX. 

Proceedings  against  Joint  Debtors,   Heirs,   Devises,    Legatees,  and 
Tenants  holding  under  a  Judgment  Debtor. 

Proceedings  against  joint  debtors. 

Proceedings  against  heirs,  devisees,  orlegatees,  or  terre 

tenants  of  a  deceased  judgment  debtor. 
The  summons. 
The  aflidavit. 
The  answer. 
Demurrer  to  answers. 


CONTENTS.  XXIX 


Demurrer  to  reply. 
Issue. 

Judgment.         ^ 
Costs. 
Execution. 


CHAPTER  VIII. 

Of  Courts  of  Justices  of  the  Peace. 

Section  i.  Of  the  jurisdiction  of  courts  of  justices  of  the  peace. 
Section  ii.  Of  the  manner  of  commencing  the  action. 
Section  III.  Of  the  pleadings. 

The  complaint. 

The  answer. 

The  demurrer. 

How  put  in. 

Judgment  upon  demurrer. 

Where  defendant  does  not  appear  and  answer. 

Action  or  defence  founded  upon  an  account. 

Entering  and  filing  pleadings. 
Section  iv.  Of  title  to  real  property  coming  in  question. 

Answer  of  title. 

The  undertaking. 

Discontinuance  of  action. 

Title  coming  in  question  on  the  trial. 

Prosecuting  suit  in  Supreme  Court. 

Costs. 
Section  v.  Of  obtaining  the  particulars  of  an  account. 

Section,  vi.  Of  variances,  and  herein  of  amendments. 

Variances. 

Amendments. 

Terms. 
Section  VII.  Of  transcripts. 

Section  viii.  Of  Executions. 


IJNTRODUCTION. 

In  entering  upon  the  preparation  of  a  Treatise  on 
the  Practice  of  the  Courts  of  this  State,  the  author 
has  not  heen  unconscious  of  the  many  and  serious 
difficulties  that  would  beset  his  path  at  every  step. 
The  novelty  of  the  new  practice  ;  the  slight  and 
imperfect  trial  that  it  has  been  subjected  to ;  the 
construction  of  the  courts,  giving  to  thirty-two 
judges  co-ordinate  powers;  the  numerous  decisions, 
at  war  with  each  other  ;  and  the  few  aids  that  past 
experience  could  furnish,  all  admonished  him  of  the 
difficulties  he  must  encounter. 

The  Code  of  Procedure  is  in  itself  a  book  of  rules, 
regulating  the  practice,  pleadings  and  procedings, 
in  courts  of  record.  What  was  formerly  entrusted 
to  the  several  courts  to  prescribe,  has  now  been 
made  the  subject  of  legislative  enactment,  and  is 
thus  removed  beyond  the  power  or  control  of  the 
judges.  Much,  however,  of  the  form  and  ceremony 
required  to  put  and  keep  in  motion  the  parts  of  a 
judicial  proceeding,  is  still  to  be  regulated  by  the 
courts,  and  hence  the  practitioner,  who  would  con- 
duct a  suit,  through  its  different  stages,  to  a  successful 
termination,  is  compelled  to  recur  to  three  distinct 
sources  of  information.  First :  to  the  practice  as  it 
existed  previous  to  the  adoption  of  the  Code ;  second: 
to  the  Code  itself;  and  third,  to  the  rules  of  the 
court.  In  these  he  will  find  the  different  parts  of 
a  judicial  proceeding,  from  its  commencement  to 
its  end. 


INTRODUCTION.  XXXI 

The  confusion  which  ensues  from  the  separation 
of  the  parts,  is  incident  to  any  system,  and  can  in 
no  way  be  remedied,  except  by  bringing  together 
in  a  body,  the  entire  practice  as  it  exists  in  all. 

Much  of  the  former  practice  remains  untouched 
by  the  Code,  and  must  now,  as  formerly,  be  followed 
in  appropriate  cases.  The  changes  occur  chiefly  in 
the  construction  of  the  courts ;  in  removing  the 
distinctions  between  law  and  equity,  and  in  plead- 
ings and  the  forms  of  proceedings.  But  the  trial 
of  issues,  the  determination  of  questions  of  law  or 
fact,  and  the  enforcement  of  judgments,  remain 
substantially  as  they  existed  under  the  fomer  prac- 
tice. The  alterations  in  these  particulars  are  simple, 
and  easily  understood.  They  consist  in  blending 
actions  at  law  and  suits  in  equity,  so  that  each  is 
commenced,  proceeded  with,  tried  and  determined 
in  the  same  manner.  Pleadings  are  simplified  and 
made  to  conform  truly  to  the  nature  of  the  action  ; 
and  the  forms  of  proceeding  are  intended,  and  will 
doubtless  serve  to  facilitate  and  hasten  the  deter- 
mination of  the  controversy,  upon  the  real  and 
substantial  questions  of  difference  between  the  par- 
ties ;  at  the  same  time  they  afford  ample  protection 
to  the  rights  of  litigants  in  presenting  their  claims 
and  defences  for  the  adjudication  of  the  courts. 

The  subject  of  reviewing  the  judgments  rendered 
by  the  direction  of  a  single  judge,  or  by  inferior 
courts,  is  involved  in  more  difficulty  than  any  other 
branch  of  the  practice.  In  this  respect  the  Code 
has  wrought  a  more  radical  change.  But  the  judges 
in  the  construction  of  their  rules,  have  met  and  in 
a  measure  removed  the  difficulties  and  doubts  which 
previously  existed. 

( 


XXXII  INTRODUCTION. 

Heretofore,  the  foreclosure  of  mortgages,  and  the 
partition  of  lands,  were  entrusted  chiefly  to  courts 
of  equity;  now  they  are  made  the  subjects  of  an 
action  at  law,  and  are  conducted  in  all  respects  like 
other  actions.  And  the  facility  and  expedition  with 
which  such  suits  were  determined,  where  no  con- 
troversy existed,  continues  as  amply  as  before. 

In  the  construction  of  the  work,  an  effort  has 
been  made,  briefly  to  analize  the  Code  and  bring 
together  its  different  parts  relating  to  the  same  sub- 
ject matter,  in  such  a  manner,  that  the  reader  may 
find  all  the  provisions  relating  to  one  topic  in  a 
connected  form.  The  plan  adopted  is  simple,  and 
the  work  runs  through  an  entire  judicial  proceeding 
from  its  commencement  to  its  final  determination 
in  the  court  of  last  resort.  All  the  proceedings  on 
the  part  of  the  plaintiff  and  of  the  defendant,  with 
the  incidents  connected  therewith,  are  stated  in 
detail,  much  after  the  manner  that  they  usually 
occur,  in  the  progress  of  a  cause.  The  parts  of  the 
old  practice  which  remain,  are  stated  in  connection 
with  the  provisions  of  the  Code,  each  being  more 
or  less  necessary  in  every  step  taken  in  the  suit. 

Where,  however,  the  practice  remains  entirely 
unchanged,  a  reference  has  in  most  cases  been 
made  to  one  or  more  of  the  several  treatises  on 
practice,  now  extant,  as  furnishing  all  the  informa- 
tion needed :  it  being  the  design  of  this  work  to 
adapt  the  practice  to  the  changes  and  not  to  repub- 
lish what  has  been  untouched  by  the  Code. 

The  work  is  divided  into  three  parts.  The  first 
relates  to  "  Civil  actions  aid  special  proceedings."  The 
second,  to  the  "  Commencement,  prosecution  and  defence  of 
actions''    And  the  third  to,  ''Proceedings  in  sjpecial  cases" 


PART  L 


The  practice  which  prevailed  in  the  courts  of  law 
and  equity  in  this  State  prior  to  the  adoption  of  the 
Code  of  Procedure  was  derived  from  the  superior, 
common  law  and  equity  courts  of  England,  and 
was  founded  upon  ancient  usage,  the  rules  and  or- 
ders of  the  courts,  legislative  enactments  and  judi- 
cial decisions. 

Under  the  system  as  it  existed  from  the  founda- 
tion of  this  government  down  to  the  establishment 
of  the  new  Code,  the  courts  of  equitable  and  com- 
mon law  jurisdiction,  were  kept  distinct  and  sepa- 
rate, and  but  few,  if  any  of  the  principles  and  prac- 
tices which  appertained  to  the  one,  were  recognized 
as  belonging  to  the  other. 

All  their  forms  and  proceedings,  were  as  distinct 

and  different  as  their  powers  and  jurisdictions  were 

separate   and  unlike.     Each,   worked  in  a  different 

sphere,   and  although,  the  end  to  be  attained,  the 

enforcement  or  protection  of  rights,  and  the  redress 

or  prevention  of  wrongs,  was  in  the  main,  the  same, 

they   proceeded   through    separate    and    dissiinilar 

channels,  and  were  governed  by  different  rules,  and 

orders. 

I 


PRELIMINARY    REMARKS. 


These  dissimilar  systems,  which  before  were  so 
widely  separated,  are  now-  blended  in  one,  and  the 
distinctions  which  heretofore  existed  between  cau- 
ses of  action  of  a  legal  or  equitable  nature,  and  all  the 
forms  of  proceedings,  and  principles  of  practice,  ap- 
pertaining to  the  one  or  the  other,,  are  abolished. 
So  that  there  is  now  but  "  one  form  of  action  for  the 
enforcement  or  protection  of  private  rights  and  the 
redress  or  prevention  of  private  wrongs,"  and  which 
is  denominated  a  civil  action. 

The  proceedings,  in  instituting  an  action,  and 
conducting  it  through  the  different  stages  of  prose- 
cution to  trial  and  judgment,  are,  in  all  their  essen- 
tial particulars,  the  same,  whether  the  cause  of  the 
action  is  of  a  legal  or  equitable  character.  The  sum- 
jnons — the  complaint,  the  answer,  demurrers  and 
reply  (varied  only  so  far  as  to  contain  a  statement 
of  the  facts,  constituting  the  cause  of  action — the 
nature  of  the  relief  sought,  and  the  defence,)  the 
manner  of  trying  the  issue,  the  judgment  and  the 
mode  of  enforcing  it,  are  now  the  same,  in  what 
was  heretofore  denominated  an  action  at  law  and  a 
suit  in  equity.  So  that  there  is  now  one  practice  and 
mode  o(  procedure,  alike  applicable  to  every  species 
of  right,  whether  it  be  founded  in  the  "strict  rules 
of  the  common  law/'  or  based  upon  the  more  equi- 
table principles  of  the  "civil  law.'* 

And  in  destroying  the  distinctions  which  existed 
between  the  several  causes  of  actions,  the  Code  of 
Procedure,  has  also  abolished  all  forms  of  pleading,. 
which  heretofore  put  and  kept  in  motion  the  ma- 
chinery of  the  courts  So  that  there  is  no  longer 
any  division  or  denomination  of  actions;  and  the 


PRELIMINARY    REMARKS.  3 

pleader  need  not  examine  whether  he  should  bring 
assumpsit  or  debt,  trespass  or  trover,  or  whether  his 
cause  of  action  falls  within  the  class,  ex  contractu  or 
ex  delicto.  He  is  relieved  from  the  doubts  and  diffi- 
culties with  which  nice  and  subtle  distinctions  en- 
veloped his  path,  and  by  a  simple,  concise  and 
intelligible  statement  of  the  facts  constituting  his 
cause  of  action,  is  to  spread  before  the  court,  his 
complaint.  And  this  must  be  done  in  such  a 
manno2*,  as  "to  enable  a  person  of  ordinary  under- 
standin-r  t-)  kiiovv*  v.diat  is  intended."' 


CHAPTER  I. 

OF  CIVIL  ACTIONS  AND  SPECIAL  PROCEEDINGS, 


SECTION  I. 
Of   Civil  Actions. 

A  civil  action  is  defined  to  be  "  a  regular  judicial 
proceeding,  in  which  a  party  prosecutes  another  for 
the  enforcement  or  protection  of  a  right,  or  the  re- 
dress or  prevention  of  a  wrong."  {Code,  §  2.) 

In  this  general  definition  is  embraced  every  spe- 
cies of  cause  of  action,  known  to  the  laws  of  the 
land,  the  customs  and  usages  of  society,  and  the 
principles  of  equity  and  justice,  of  which  the  courts 
can  take  judicial  cognizance.  There  must,  how- 
ever, be  a  party  claiming,  and  a  party  resisting  the 
claim;  a  party  prosecuting,  and  a  party  defending. 
Therefore  an  action,  necessarily  involves  the  idea  of 
a  right  withheld,  or  an  injury  committed,  and  of  a 
remedy  provided  for  the  enforcement  or  protection 
of  the  one,  or  for  the  redress  or  prevention  of  the 
other.  In  the  language  of  Sir  W.  Blackstone,  it  is 
"the  remedial  instrument  of  justice,"  being  the 
machine  or  instrument,  provided  by  law,  and  em- 
ployed by  the  courts,  in  cases  of  public  or  private 
injury  and  wrong,  to  enforce  and  protect  the  rights 
of  the  citizen. 


CRIMINAL  ACTIONS.  >  5 

SECTION  II. 

Of  Criminal  Actions. 

It  is  not  the  purpose  or  design  of  this  work,  to 
devote  any  space  to  the  consideration  of  this  spe- 
cies of  actions.  They  are  of  a  class,  distinct  and 
peculiar;  having  little,  if  any  thing  to  do  with  civil 
actions,  and  with  which  the  practitioner  is  seldom 
troubled.  Besides,  it  is  a  subject  of  sufficient  mag- 
nitude to  deserve  a  more  extended  notice,  than 
would  comport  either  with  the  aim  or  design  of  this 
Treatise,  to  give  it. 

Criminal  actions,  are  such  as  have  for  their  object 
the  punishment  of  public  offences;  and  hence  all 
crimes,  whether  made  so  by  statute,  or  such  by  the 
common  law;  whether  felonies  or  misdemeanors, 
fall  within  this  general  definition  of  criminal  ac- 
tions. It  will,  therefore,  readily  be  seen,  that  this 
is  an  inappropriate  place  for  the  consideration  of 
such  a  subject. 

When,  however,  a  public  offence  is  not,  by  statute 
or  the  common  law,  punishable  as  a  crime,  but 
merely  made  penal,  it  is  a  civil  action,  and  as  such 
may  be  enforced,  as  in  the  case  cf  private  wrongs. 


CHAPTER  II. 

OF  SPECIAL  PROCEEDINGS, 


SECTION  I. 

In  addition  to  the  power  conferred  by  law,  upon 
the  courts  to  entertain  actions  between  individuals, 
and  employ  its  functions  and  apply  the  principles 
of  equity  and  justice  to  cases  where  there  are  or 
maybe  conflicting  claims  and  disputed  rights,  there 
is  another  class  of  rights,  which  have  received  the 
protection  of  the  law,  and  over  which  the  courts 
have  and  still  are  authorised  to  exercise  jurisdiction. 
It  is  not  strictly  a  common  law  jurisdiction,  but 
rather  creations  of  a  statute,  and  are  denominated 

Special  Proceedings. 

It  will  not  be  necessary,  under  this  head,  to  do 
any  thing  more  than  briefly  designate  the  class  of 
remedies  that  are  embraced  under  this  form  of  pro- 
ceeding. They  are  chiefly  of  an  equitable  or  sum- 
mary character,  and  not  being  aflected,  in  any  con- 
siderable degree,  by  the  Code  of  Procedure;  and  the 
jurisdiction  over  them  having  been  heretofore  vested 
in  the  courts  of  common  law  and  chancery,  a  refer- 
ence to  either  of  the  many  works  on  the  practice  of 
those  several  courts  will  furnish  the  practioner  and 
the  student  with  all  the  assistance  he  may  require, 


SPECIAL   PROCEEDINGS.  7 

^nd  renders  it  unnecessary,  that  it   should  be  em- 
braced within  the  scope  of  this  Treatise. 

The  special  proceedings  which  are  excepted  from 
the  operation  of  the  Code  are  such  as  relate  to 

"  Attachments  against  absconding',  concealed  and  non-resident 
debtors."     2  Rev.  Stat.,  p.  1. 

"  Custody  and  disposition  of  the  estates  of  idiots,  lunatics,  persons 
of  unsound  mind  and  drnnkards."     Jbid. 

♦'  Trespass  on  lands."     Jbid,  338. 

*'  Proceedings  to  discover  the  death  of  persons,  upon  whose  lives 
any  particular  estate  may  depend."     Ibid,  343 

*'  Bringing  and  maintaining  suits  by  poor  persons."     /bid,  444. 

*'  Suits  by  and  against  executors  and  administrators,  and  against 
heirs,  devisees  and  legatees."     Ibid,  447. 

*'  Proceedings  by  and  against  corporations  and  public  bodies, 
having  certain  corporate  powers,  and  by  and  against  officers 
representing  them."     Ibid,  457. 

■*'  Suits  against  sheriffs,  surrogates  and  other  officers  on  their  official 
bonds."     Ibid,  476. 

*' Actions  for  penalties  and  forfeitures;  and  provisions  for  the  col- 
lection and  remission  of  forfeited  recognizances  and  fines  iiii- 
posed  by  courts."     Ibid,  480. 

■*'  Proceedings  for  the  admeasurement  of  dower."     Ibid,  488. 

*'  Proceedings  for  the  collection  of  demands  against  ships  and 
vessels."     Ibid,  493. 

*'  Proceedings  for  the  recovery  of  rent  and  of  demised  premises." 
Ibid,  oOO. 

*'  Summary  proceedings  to  recover  the  possession  of  lands  in  cer- 
tain cases."     Ibid,  -507. 

*'  Distraining  cattle  and  other  chattels  doing  damage,  and  of  dis- 
training in  other  cases  "     Ibid,  517. 

*'  Proceedings,  as  for  contempts,  to  enforce  civil  remedies,  and  to 
protect  the  rights  of  parties  in  civil  actions  "     Ibid,  534. 

^'  Arbitrations."     Ibid,  541. 

*'  Foreclosure  of  mortgages  by  advertisement."     Ibid,  545. 

*'  Proceedings  for  the  draining  of  swamps,  marshes  and  other  low 
lands."     Ibid,5-iS. 

*' General  miscellaneous  provisions  concerning  suits  and  proceed- 
ings in  civil  actions."     Ibid,  550. 

*'  Provisions  for  the  better  security  of  mechanics  and  others  erect- 
ing buildings  and  furnishing  materials  therefor,  in  the  several 
cities  of  this  state,  and  in  certain  villages."     Ibid,  558. 

"  Writs  of  habeas  corpus  and  certiorari  in  certain  cases."  Ibid, 
559. 


8  SPECIAL    PROCEEDINGS. 

All  the  foregoing  proceedings  and  provisions  are* 
retained  in  the  statute,  and  are  not  affected  by  the 
provisions  of  the  Code  of  Procedure,  except  that 
when  in  consequence  of  any  such  proceeding  a 
civil  action  shall  be  brought,  such  action  must  be 
conducted  in  conformity  to  the  Code:  and  except 
also  where  any  particular  provision,  before  enume- 
rated, is  plainly  inconsistent  with  the  Code,  such 
provision  is  deemed  to  be  repealed.  Code,  §  471. 

In  addition  to  these  excepted  proceedings  and 
provisions  there  are  others  to  which  the  Code  of 
Procedure  is  made  to  apply,  such  as  "proceedings 
against  joint  debtors,  heirs,  devisees,  legatees,  and 
tenants,  holding  under  judgment  debtor."  Code, 
title  XIII.,  chap.  2.  "  Confession  of  judgment  without 
action."  Ibid,  chap.  3 — and  the  like. 

Special  proceedings,  are  such  as  are  brought  be- 
fore the  court,  upon  petition  or  affidavit,  in  which 
there  is  but  one  party,  namely  the  person  applying. 
No  defence  is  interposed,  but  the  court  take  care 
that  the  rights  and  interests  of  others  are  not  affect- 
ed. The  relief  sought,  is  granted  to  the  one  apply- 
ing, without  giving  notice  to  any  one,  except  where 
the  rights  of  another  may  be  impaired,  when  the 
court  may  require  notice  to  be  given. 


CHAPTER  III. 

OF  THE  PARTIES  TO  THE  ACTION  AND  HEREIN  OF 
PROCEEDINGS  UPON  THE  DEATH,  MARRIAGE  OR 
OTHER  DISABILITY,  OR  TRANSFER  OF  INTEREST 
DURING  PENDENCY  OF  THE  ACTION. 


SECTION  I. 
Of  the  Party  Plaintiff. 

Having  determined  upon  bringing  the  action,  the 
first  inquiry  should  be,  in  whose  name  the  suit  should 
be  brought.  The  rules  which  heretofore  governed, 
in  respect  to  the  party  plaintiff,  are  very  materially 
changed  by  the  Code  of  Procedure.  Formerly  in  ac- 
tions at  law,  the  suit  could  generally  be  instituted  in 
the  name  of  the  party  with  whom  the  contract  was 
made,  notwithstanding  he  might  have  parted  with 
all  interest  in  it.  And  sometimes  it  might  be  brought 
in  the  name  of  a  party  having  no  actual  interest,  as 
in  the  case  of  negotiable  notes  and  bills.  In  suits 
in  equity,  however,  the  rule  was  different,  and  the 
person  made  plaintiff,  must  have  been  at  the  time 
of  the  commencement  of  the  suit  immediately  in- 
terested in  the  subject  matter  of  it,  and  it  w^as  fatal 
to  the  bill  if  filed  in  the  name  of  a  mere  nominal 
complainant. 

We  will  now  point  out  the  changes  produced  by 
the  Code. 


10  OF   THE   PARTY   PLAINTIFF. 

The  action  must  be  prosecuted  in  the  name  of  the 
real  party  in  interest,  {Code,  §  111,)  except  where  the 
action  is  brought  by  an  executor  or  administrator, 
or  a  trustee  of  an  express  trust,  or  where  the 
person  suing  is  expressly  authorised  by  statute,  in 
which  cases  the  action  may  be  brought,  without 
joining  with  the  plaintiff  the  person  or  persons  for 
whose  benefit  the  suit  is  prosecuted.  (Code,  §  113.) 
In  all  other  cases,  the  party  who  brings  the  action, 
must  at  the  time  be  the  owner,  either  legally  or 
equitably,  of  the  right  of  action  sought  to  be  en- 
forced. The  suit  cannot  be  brought  in  the  name  of 
a  fictitious  person,  or  of  one  who  has  no  interest  in 
the  subject  matter  of  the  controversy:  but,  as  we 
have  seen,  it  may  be  by  an  administrator,  executor, 
or  trustee  of  an  express  trust,  or  by  a  person  express- 
ly authorised  by  statute,  such  as  public  officers. 
Other  persons  acting  in  a  fiduciary  capacity  cannot 
sue  in  their  own  names,  nor  can  an  agent  or  bailee, 
unless  it  be  to  recover  the  possession  of  property  un- 
lawfully taken  from  him,  or  upon  contracts  made 
by  him,  and  in  which  he  is  beneficially  interested, 
where  the  law  so  far  regards  him  as  the  owner,  that 
the  suit  may  be  brought  in  his  name. 

l^%o  must  be  Plaintiff.]— In  all  cases,  the  plaintiff  on 
the  record  must,  at  the  commencement  of  the  suit, 
have  the  right  of  action  in  himself,  and  it  will  not 
answer  if  he  subsequently  acquire  it.  An  executor 
or  administrator  may  sue  in  his  own  name  for  any 
rio-ht  of  action  accruing  to  him,  as  such — to  recover 
the  assets  and  property  of  his  testator  or  intestate ; 
they  belong  to  him  for  the  purposes  of  paying  debts, 
legacies  and  distribution.     A  trustee   of  an  express 


OF  TMC   PARTY   PLAINTIFF.  11 

trust,  ill  like  manner,  is  vested  with  the  legal  estate 
committed  to  his  care,  and  is  bound  to  preserve  and 
protect  it  for  tlie  benefit  of  his  ward,  and  he  is,  so 
far,  the  real  party  in  interest;  and  may  properly  sue 
to  recover  its  possession,  or  a  debt  due  on  account 
of  it.  But  idiots,  lunatics,  persons  of  unsound  mind, 
and  habitual  drunkards,  must  sue  in  their  own 
names,  in  actions  relating  to  personal  property,  and 
it  cannot  be  brought  in  the  name  of  the  committee, 
(1  Hill  Rep.  97,)  the  exceptions  before  mentioned 
not  extending  to  this  class  of  persons. 

Married  JVomen.] — In  actions  where  a  mairied  wo- 
man is  a  party,  her  husi)and  must  be  joined  with  her, 
except  where  the  action  concerns  her  separate  pro- 
perty, when  she  may  sue  alone,  and  in  actions  be- 
tween the  v/ife  and  her  husband,  she  may  sue  or  be 
sued  alone.   Code,  §  114. 

It  is  necessary  to  join  the  wife  with  the  husband, 
as  a  party,  in  those  cases  where  the  contract,  which 
is  the  subject  of  the  action,  was  made  with  her  be- 
fore marriage ;  13  Wendell,  271 ;  or  where  the  cause  of 
action  would  necessarily  survive  to  her.  13  Wendell, 
271.  18  John  JR.  443.  Where  from  an  injury  to 
the  person  of  the  wife,  the  husband  suffers  a  con- 
sequential damage,  he  may  sue  alone;  otherwise 
they  must  both  join  in  the  action.  And  for  person- 
al injuries  !o  a  child,  such  as  abduction,  beating,  se- 
duction, &c  ,  the  father  may  sue  if  he  can  show  a 
consequent  loss  of  service  to  himself,  but  not  other- 
wise. iChitt.  PL,  70.  {Ed.  of  1844.)  So  of  injuries 
to  the  person  of  a  servant.  In  both  these  cases,  how- 
ever, the  child  or  the  servant  may  himself  sue.  And 
the  right  of  action   in  the   father  or  master,   arises 


12  OF    THE    PARTY    PLAINTIFF. 

from  the  consequent  loss  of  service,  and   not  from 
the  injury  itself 

Infant.] — An  infant  cannot  sue  in  his  own  name 
alone,  but  must  appear  by  guardian,  who  may  be 
appointed  by  the  court  in  which  the  action  is  prose- 
cuted, or  by  a  judge  thereof,  or  a  county  judge.  The 
manner  of  procuring  the  appointment  of  a  guardian 
of  an  infant  will  be  treated  under  a  separate  head. 

See  post. 

Several  plaintiffs.] — It  is  necessary  that  all  persons 
having  an  interest  in  the  subject  of  the  action,  and 
in  obtaining  the  relief  demanded,  should  be  joined 
as  plaintiffs.  Code,  §  117-119.  Where,  however,  a 
person,  who  should  be  joined  as  plaintiff,  refuses 
his  consent  to  be  joined,  he  may  be  made  a  party 
defendant,  the  reasons  therefor  being  stated  in  the 
complaint.  Code,  §  119. 

And  where  the  subject  of  the  action  is  one  of  a 
common  or  general  interest  to  many  persons,  one 
or  more  of  the  persons  interested  may  sue  or  defend 
for  the  benefit  of  all,  but  it  must  appear,  that  a 
complete  determination  of  the  subject  in  controversy 
can  be  made  without  including  all  the  persons 
having  a  general  or  common  interest  therein.  So, 
if  it  be  a  case  where  the  parties  are  necessarily  very 
numerous,  the  court  may,  if  it  appear  to  be  imprac- 
ticable to  bring  them  all  into  court,  permit  the  suit 
to  be  prosecuted  by  or  against  one  or  more  for  the 
benefit  of  the  whole.  Cude,  §  119.  Thus,  where 
there  is  a  large  number  of  owners  of  a  fishery,  or  of 
a  parcel  of  land,  or  of  a  chattel,  in  an  action  in  re- 
spect to  such  fishery,  land  or  chattel,  it  would  be 
proper  to  institute  the  action  by  or  against  one  or 
more  only  of  the  several  owners,  for  the  benefit  of 


OF    THE    PARTY    PLAINTIFF.  13 

the  whole.  But  it  should  distinctly  appear  in  the 
complaint,  that  it  would  be  impracticable,  upon  the 
score  of  expense  to  make  them  all  parties. 

Misjoinder.] — If  it  appear  from  the  complaint,  that 
a  person,  who  is  united  in  interest  with  the  plaintifl', 
and  who  should  have  been  joined  as  a  plaintiff  in 
the  action,  is  not  joined,  the  defendant  may  demur 
to  the  complaint,  for  a  defect  of  parties  plaintiff. 
Code,  §  144,  sub.  4.  Indeed,  if  the  defect  appear  upon 
the  face  of  the  complaint,  the  defendant,  if  he 
wishes  to  take  advantage  of  it,  and  cause  the  proper 
persons  to  be  brought  before  the  court,  must  demur; 
for  if  he  answers,  he  will  be  deemed  to  have  waived 
the  objection.  Code,  §  148. 

It  would  seem  to  be  imperative,  that  all  persons, 
who  are  united  in  interest,  in  the  subject  of  the 
action,  should  be  joined  as  plaintiffs.  The  Legisla- 
ture, in  §  117  of  the  Code,  say  they  ''may  be  joined." 
This  will  be  construed  to  mean  ''7mistf'  especially 
as  in  the  succeeding  §  119,  they  say,  they  "  must  be 
so  joined." 

Death.] — In  case  of  the  death  of  one  of  several 
parties,  who  were  united  in  interest,  if  the  cause  of 
action,  survive  to  the  others,  the  survivors  may  sue 
alone,  1  Chitt.  PL,  19  ;  but  where  the  cause  of  action 
does  not  survive,  the  representatives  of  the  deceased 
person  must  be  joined  as  plaintiffs.  2  John.  Cases,  374. 

The  provisions  of  the  Code  requiring  all  parties 
in  interest  to  be  joined  as  plaintiffs,  have  altogether 
changed  the  rules  that  have  heretofore  prevailed  in 
respect  to  actions  of  a  merely  legal  nature.  Form- 
erly, an  assignee  of  a  personal  contract  or  chose  in 
action,  could  not  sue  in  his  own  name,  except  in 
some  cases,  by  the  custom  of  merchants  or  express 


14  NONJOINDER    OR    MISJOINDER    OF    PLAINTIFFS. 

statutory  permission.  In  courts  of  equity,  however, 
it  was  necessary  that  the  complainant  should  have 
an  interest  in  the  suit,  and  that  interest  must  have 
appeared  in  the  bill,  or  it  was  ground  of  objection 
by  demurrer  or  plea.  Mitf.  Eq.  PL,  153-7. 

Action  ex  delicto.] — There  is  a  class  of  cases  where 
it  is  not  proper  to  join  persons  as  plaintiifs,  who 
may  have  a  common  interest  in  the  subject  matter 
of  the  suit.  In  actions  that  were  formerly  denomi- 
nated ex  delicto — for  injuries  to  the  person,  as  slander, 
battery,  or  false  imprisonment,  several  persons  can- 
not sue  jointly;  each  must  bring  a  separate  action; 
except  in  cases  of  slander  of  title,  and  of  words 
spoken  of  partners  in  respect  of  their  trade.  1  Chitt. 
PL,  74.  Hence,  though  the  battery  or  false  impri- 
sonment, be  of  two  or  more  persons  at  the  same 
time,  they  must  bring  separate  actions — they  are 
not  '  united  in  interest,"  though  the  cause  of  action 
arose  at  the  same  time,  and  grew  out  of  the  same 
trespass.  The  measure  of  damages  for  one  might 
be  greater  than  for  another,  as  one  might  have  suf- 
fered a  greater  injury  than  the  other. 

SECTION   II. 

Of  the  Effect  of  the    Nonjoinder    or   Misjoinder 

OF  Plaintiffs. 

Nonjoinder.] — As  has  been  seen,  if  it  appears  upon 
the  face  of  the  complaint,  that  a  person  has  not 
been  joined  as  plaintiff,  who  ought  to  have  been, 
the  defendant  may  demur ;  that  is  the  only  way  in 
which  the  defendant  can  take  advantage  of  the 
omission.     By  §  144  of  the  Code  it  is  provided,  that 


NONJOINDER    OR    MISJOINDER    OF   PLAINTIFFS.  15 

the  defendant  may  demur  to  the  complaint  '^when 
it  shall  appear  on  the  face  thereof  that  there  is  a  defect 
of  parties  phaintifF  or  defendant.  If  therefore  it  ap- 
pears that  there  is  a  defect  of  parties,  the  only 
course  for  the  defendant,  is  to  demur;  for  if  he 
omits  to  do  so  and  answers,  he  will  be  deemed  to 
have  waived  the  objection.  §  148,  Code. 

If  the  defect,  do  not  appear  on  the  face  of  the 
complaint,  the  defendant  may  in  his  answer,  take 
advantage  of  the  objection,  and  set  oat  the  reasons 
why  some  other  person,  having  an  interest  in  the 
subject  of  the  action,  ought  to  be  joined  with  the 
plaintiff.  §  147,  Code. 

Misjoinder.] — The  foregoing  applies  to  a  nonjoinder 
of  parties  plaintiff.  The  same  rule  is  applicable  to 
a  misjoinder  of  plaintiffs.  No  person  except  the  real 
party  in  interest  can  sue.  Hence,  if  a  person  having 
no  interest  in  the  subject  of  the  action  is  united 
with  the  real  party  in  interest,  it  is  such  a  "defect 
of  parties"  as  would  be  ground  of  demurrer,  if  the 
objection  appear  upon  the  face  of  the  complaint. 
If  it  do  not  so  appear,  the  defendant  may  set  it  up 
in  his  answer,  and  nonsuit  the  plaintiff  on  the 
trial. 

In  like  manner,  where  the  nonjoinder  of  a  party 
as  plaintiff,  does  not  appear,  so  as  to  enable  the  de- 
fendant to  demur,  the  defendant  having  taken  the 
objection  in  his  answer,  may  have  a  nonsuit  on  the 
trial. 

If  the  objection  be  not  taken  either  by  demurrer 
or  answer,  the  defendant  will  be  deemed  to  have 
waived  his  right  to  make  the  objection  afterwards, 
in  any  stage  of  the  proceedings.  Code,  §  148.    And 


16  OF  THE    PARTY    DEFENDANT. 

he  cannot  upon  the  trial  raise  the  question,  whether 
the  proper  parties  are  before  tlie  court. 


SECTION  III. 
Of  the  Party  Defendant, 

Any  person  may  be  made  a  defendant,  who  has 
or  chiims  to  liave  an  interest  in  the  controversy,  ad- 
verse to  the  plaintiff;  or  who  is  a  necessary  party 
to  a  complete  determination  or  settlement  of  the 
questions  involved  therein.  Code^  §  118. 

Care  should  be  taken  that  the  person  who  has 
the  real  adverse  interest,  is  selected  as  the  defendant, 
otherwise  the  action  will  fail.  Aw  agent  is  not  gene- 
rally liable,  upon  contracts  made  by  him,  unless  he 
fails  to  disclose  his  principal,  or  does  not  declare 
himself  to  be  an  agent  at  the  time  of  making  the 
contract.  13  John.  R.,  58.   15  id.  1,  3. 

A  feme  covert  cannot  be  sued  upon  a  mere  personal 
contract,  made  by  her  during  coverture,  although 
she  live  apart  from  her  husband  and  have  a  sepa- 
rate maintenance;  the  suit  in  such  cases  must  be 
against  the  husband  alone. 

In  actions  however,  between  husband  and  wife, 
she  may  be  sued  alone.  Code,  §  114,  sub.  2. 

All  the  parties  who  have  a  common  interest,  ad- 
verse to  the  plaintiif,  must  be  joined  as  defendants, 
or  the  defendants  sued  may  demur.  It  is  not  ne- 
cessary that  the  interest  should  be  direct  and  im- 
mediate, it  may  be  remote  and  contingent,  and  if 
it  be  of  a  nature,  that  it  may  by  possibility  attach 
at  a  future  day,  the  person  having  such  possible 
interest,    must   be   made  a  defendant,  if  the  relief 


OF   THE    PARTY    DEFENDANT.  17 

sought  to  be  obtained  by  the  action,  will  defeat  or 
destroy  such  interest,  otherwise  there  would  not  be 
"  a  complete  determination  or  settlement  of  the 
questions  involved  therein." 

Among  the  cases  of  remote  or  contingent  interest, 
is  that  of  dower ;  which  depends  upon  the  wife's 
survivinsr  the  husband — remainder  interests,  which 
depend  upon  the  termination  of  a  previous  out- 
standing estate — assignments  in  trust  to  pay  debts,  the 
interest  of  the  assignor  in  the  trust  property,  de- ' 
pending  upon  there  being  a  surplus,  after  perform- 
ance of  the  trusts;  and  similar  cases.  Where  it  is 
the  design,  completely  to  determine  the  rights  or  in 
any  way  to  affect  the  rights  of  others,  all  such  as 
have  any  interest  or  who  have  a  right  to  be  heard, 
must  be  made  defendants. 

A  wife  cannot  be  sued  alone,  upon  contracts  made 
by  her  dum  sola.  Her  husband  must  be  joined  with 
her.  15  John.  R  403.   1  Chitt.  PI  57.    13  Wendell  271. 

When  a  contract  is  several,  as  well  as  joint,  all 
the  parties  to  it  may  be  sued  jointly  or  each  party 
separately.  iSaund.ld^.  It  being  optional  with  the 
plaintiff  to  pursue  one,  or  all  of  the  contracting  par- 
ties. And  generally  tenants  in  common  must  all  be 
sued  in  the  same  action. 

Corporators  and  dormant  'partners  need  not  be  joined, 
though  they  may  be,  where  they  have  become  per- 
sonally liable. 

An  infant  may  be  sued  alone,  but  no  proceeding 
can  be  taken  in  the  suit,  after  service  of  the  sum- 
mons, until  a  guardian  has  been  appointed  to  ap- 
pear  for  him.  Code,  §  115.     As  to  the  manner  of 


18  OF    THE    PARTY   DEFENDANT. 

procuring   the    appointment  of  a   guardian.      See 
post. 

It  is  provided  by  statute  (Code,  §  120,)  that  where 
there  ate  several  persons,  severally  liable  upon  the 
same  obligation  or  instrument,  including  the  par- 
ties to  bills  of  exchange  and  promissory  notes,  they 
may  all  or  any  of  them,  be  included  in  the  same 
action,  at  the  option  of  the  plaintiff. 

As  a  joint  judgment  against  all  the  parties  to  an 
instrument  is  as  effectual  as  a  separate  judgment 
against  each  would  be,  it  is  generally  advisable  to 
include  all  in  one  action,  especially,  as  no  costs, 
other  than  disbursements,  are  allowed  to  the  plain- 
tiff, in  more  than  one  action,  if  he  bring  several  ac- 
tions against  parties  who  may  be  joined  in  one. 
Code,  §  304,  suh.  4. 

In  actions  ex  delicto,  the  general  rule  is,  that  the 
person  committing  the  injury,  either  by  himself  or 
his  agent,  must  be  made  defendant;  the  principal 
being  liable  for  the  tortious  acts  of  his  agent,  if 
committed,  in  the  prosecution  of  his  business,  but 
otherwise,  if  the  act  be  wilful  and  malicious — when 
the  agent  alone  is  liable.  The  agent  or  servant  also 
is  liable  notwithstanding  the  principal  may  be.  8 
Wend.  R.,  474.  Browne  on  actions,  175,  180. 

It  is  not  necessary  to  join  all  the  parties  to  a  tor- 
tious act,  as  defendants — one  or  more,  or  all,  may 
be  sued  jointly,  or  each  separately.  6  John.  R.,  26, 
31.  Where  the  tort  however  consists  of  verbal 
slander  by  two  or  more  persons,  a  separate  action 
must  be  brought  against  each  ;  they  cannot  be  sued 
jointly.  G  John.  R.,  26,  31. 


NONJOINDER    OR    MISJOINDER    OF    DEFENDANTS.  19 


SECTION  IV. 

Of  the  effect  of  the  Nonjoinder  or  Misjoinder  of 

Defendants. 

Nonjoinder.'] — It  is  essential  to  the  proper  determi- 
nation of  the  subject  matter  of  the  action,  that  the 
proper  person  or  persons  is  made  defendant,  and  the 
same  consequences  flow  from  a  nonjoinder  of  de- 
fendants, as  from  a  nonjoinder  of  plain' iffs.  If, 
therefore,  a  person  has  not  been  joined,  as  defend- 
ant, who  has  an  interest  in  the  controversy;  or  if  a 
complete  determination  or  settlement  of  the  ques- 
tions involved  in  the  action,  cannot  be  made,  with- 
out joining  another  person  as  defendant,  it  is  ground 
of  objection  by  the  defendant,  who  may  insist  upon 
having  the  proper  parties  before  the  court.  And 
when  the  delect  appears  upon  the  face  of  the  com- 
plaint, the  defendant  may  demur;  indeed,  if  he 
would  avail  himself  of  the  objection,  he  must  demur, 
if  the  compaint  itself  discloses  the  defectiveness  of 
the  parties.  Code,  §  148. 

If,  however,  the  objection  do  not  appear  on  the 
face  of  the  complaint,  the  defendant  may  set  it  up 
in  his  answer,  and  it  will  be  ground  of  defence  at 
the  trial.   Code,  §  147. 

Misjoinder. ] — If  an  improper  person  is  made  a  par- 
ty defendant,  that  is,  a  person  who  has  no  interest 
in  the  subject  matter  of  the  action,  or  who  is  not 
necessary  to  a  complete  determination  or  settlement 
of  the  questions  involved,  it  is  also  ground  of  objec- 
tion by  the  defendant.     And  when  this  appears  from 


20  NONJOINDER    OR    MISJOINDER    OF    DEFENDANTS. 

the  complaint,  the  defendant,  if  he  wishes  to  avail 
himself  of  the  objection  must  demur.  Code,\  144. 
If  it  do  not  so  appear,  the  defendant  may  set  it  up 
in  his  answer,  and  prove  it  on  the  trial  as  defence 
to  the  action. 

The  same  general  rules  apply  as  well  to  misjoin- 
ders as  to  nonjoinders  of  defendants. 

If  the  defendant  fails  to  take  the  objection  to  the 
defect  of  parties  defendant,  either  by  demurrer  or 
answer,  the  objection  will  be  deemed  to  be  waived, 
{Code,  §  148,)  and  the  defendant  will  not  be  permit- 
ted afterwards  to  raise  the  question. 

Determining  a  Controversy  as  to  Parties.'] — "When  the 
question  as  to  the  sufficiency  of  the  parties  to  the 
action  arises,  either  upon  demurrer  or  answer  to  the 
complaint,  the  court  will  sometimes  determine  the 
controversy  involved  in  the  action,  when  it  can  be 
done,  without  prejudice  to  the  rights  of  others  or  by 
saving  their  rights;  thus  disregarding  the  objection 
complained  of  by  the  defendant.  That  is,  the  court 
will  sometimes  permit  the  action  to  go  on  to  trial 
notwithstanding  it  may  appear  that  there  are  other 
parties  who  have  some  interest  in  the  subject  mat- 
ter of  the  controversy,  and  who  have  not  been  joined 
in  the  action,  provided  it  can  be  done  without  pre- 
judice to  the  rights  of  such  parties,  or  where  their 
rights  can  be  saved.  The  court  will  not  always  ar- 
rest the  action,  and  order  new  parties  to  be  brought 
in,  if  the  subject  of  the  action  or  the  rights  of  par- 
ties are  not  prejudiced  or  destroyed,  and  the  suit 
can  well  be  determined  without  them.  Code,  §  122. 

But  the  court  may  order  persons  not  parties  to  the 
action,  to  be  brought  in,  when  it  appears  that  they 


OF   THE    CHANGE    OF    PARTIES.  21 

have  an  interest  in  the  subject  of  the  suit,  and  that 
a  complete  and  final  determination  of  the  contro- 
versy cannot  be  had  without  them,  or  when  it  ap- 
pears that  the  rights  of  such  persons  may  be  preju- 
diced if  they  are  not  heard.  Still,  the  court  may 
save  or  reserve  the  interests  of  such  persons  from 
the  consequences  of  the  action,  and  thus  avoid  the 
necessity  of  summoning  them  in  the  suit. 

SECTION  V. 

Of  the  Change  of  Parties,  and  herein,  of  the 

EFFECT    upon   THE    AcTION. 

Formerly,  if  a  sole  plaintiff  or  defendant  died  he- 
fore  verdict  or  interlocutory  judgment,  the  action 
abated,  and  tha  plaintiff  or  his  executors  or  admin- 
istrators, had  to  commence  a  new  action  against  the 
defendant  or  his  executors  or  administrators,  provi- 
ded the  cause  of  action  survived  to  the  representa- 
tives. 

But  if  the  event  happened  after  verdict,  a  judg- 
ment might  thereupon  be  perfected. 

Now,  however,  it  is  provided  by  §  121  of  the  Code^ 
that  "  no  action  shall  abate  by  the  death,  marriage 
or  other  disability  of  a  party,  or  by  the  transfer  of 
any  interest  therein,  if  the  cause  of  action  survive 
or  continue." 

This  is  an  important  change,  and  enables  tlie  par- 
ty to  proceed  with  his  action,  instead  of  commen- 
cing a  new  one. 

Sole  Plaintiff.'] — If  a  sole  plaintiff  in  the  action  die, 
at  any  time,  during  the  pendency  of  the  suit,  cither 


22  OF    THE    CHANGE    OF    PARTIES. 

before  or  after  verdict,  and  the  cause  of  action  sur- 
vive, a  motion  must  be  made  to  the  court  in  which 
the  suit  is  pending,  to  continue  it  by  and  in  the  name 
of  his  executors  or  administrators.  So  if  a.  sole  de- 
fendant die,  a  like  motion  must  be  made  to  continue 
the  action  against  his  executors  or  administrators. 
So  if  SL  feme  sole  plaintiff  or  defendant  marry  during 
the  progress  of  the  suit,  the  court,  upon  motion, 
will  order  the  action  to  be  continued  by  or  against 
her  husband,  or  unite  her  husband,  as  a  co-plaintiff 
or  co-defendant,  with  her. 

As  we  have  seen  {ante  p.  10)  the  action  must  be 
commenced  in  the  name  of  the  real  party  in  inte- 
rest. Yet  such  party  may,  immediately  afterwards, 
transfer  his  interest  to  another.  The  action,  never- 
theless, does  not  abate,  but  may  be  continued  by 
the  successor  in  interest ;  for  which  purpose  a  mo- 
tion must  be  made. 

Transfer  of  interest.] — In  case  of  any  other  transfer 
of  interest  the  action  continues  in  the  name  of  the 
original  party.  The  court,  however,  may  allow  the 
person  to  whom  the  transfer  is  made  to  be  substi- 
tuted in  the  action.  Code,  §121. 

Several  plaintiff's  or  defendants.]  —  In  case  of  the 
death,  marriage,  or  other  disability,  or  the  transfer 
of  any  interest,  by  one  of  several  plaintiffs  or  defend- 
ants, if  the  cause  of  action  survive  to  the  surviving 
plaintiffs  or  defendants,  the  court  will  order  the  suit 
to  be  continued  by  or  against  the  survivors,  upon 
motion  for  that  purpose. 

Upon  the  happening  of  either  of  the  events,  ren- 
deriii"'  it  necessary  to  continue  the  action  against 
those  who  succeed  to  the  interest  of  the  plaintif}',  a 


OF  THE  CHANGE  OF  PARTIES.  23 

motion  must   be  made  to  the  court   in  which    the 
action  is  pending. 

Motion,  when  made] — This  motion  must  be  made 
within  one  year  after  the  happening  of  the  event,  and 
cannot  be  made  afterwards.  Code,  §  121. 

The  affidavit.] — For  this  purpose  an  affidavit  must 
be  drawn,  stating  the  facts,  rendering  the  change 
necessary,  and  sworn  to  by  the  person  who  seeks  to 
continue  the  action.  If  a  sole  plaintiff  or  defendant 
dies,  his  executor  or  administrator  must  make  the 
'affidavit;  if  one  of  several  plaintiffs  or  defendants 
dies  the  survivor  must  make  the  affidavit,  for  the 
suit  is  to  be  continued  in  his  name ;  if  the  plaintiff 
parts  with  his  interest  in  the  subject  matter  of  the 
suit,  the  person  who  succeeds  to  the  interes*,  must 
make  the  affidavit.  A  copy  of  the  affidavit  must 
be  served  on  the  attorney  for  the  opposite  party, 
with  a  notice  of  motion  at  the  special  term,  for  an 
order  to  continue  the  suit  against  the  person  who 
survives  the  plaintiff  or  defendant  or  who  succeeds  to 
his  interest  in  the  subject  matter  of  the  controversy. 

Motion,  how  made.] — This  motion  is  made  like 
other  special  motions,  and  as  the  subject  of  motions 
is  treated  of  by  itself  in  another  part  of  this  work, 
it  is  unnecessary  to  point  out  at  this  time,  more  par- 
ticularly, the  practice. 

Who  may  make  the  mofion.] — It  may  sometime  arise, 
that  the  party  or  person,  whose  duty  it  is  to  apply 
to  the  court  to  allow  the  action  to  be  continued  by 
or  against  the  representative  or  successor  in  interest, 
may  neglect  or  refuse  to  move.  This  throws  upon 
the  opposite  party  the  burthen  of  becoming  the 
moving  party.  He  cannot  get  the  suit  "out  of 
court"  for  a  want  of  prosecution,  nor  can  he  proceed 


y 


24  OF  THE  CHANGE  OF  PARTIES. 

with  the  trial.  Indeed  he  cannot  take  any  step 
whatever  in  the  suit,  so  long  as  the  disability  con- 
tinues. That  must  be  removed  before  the  action 
is  in  a  condition  to  proceed. 

After  waiting  a  reasonable  time  for  the  party 
whose  duty  it  is,  in  the  first  instance,  to  move,  if 
he  neglect,  or  upon  application,  refuse  to  proceed, 
the  opposite  party  may  himself  apply  to  the  court, 
upon  an  affidavit  of  the  neglect  or  refusal,  and  ob- 
tain an  order  that  the  action  be  continued. 

Action,  how  continued  after  one  year  has  elapsed.] — 
Although  a  motion  to  continue  the  action  can  only 
be  made  within  one  year  from  the  time  the  disability 
happens,  the  party  may,  after  the  expiration  of  a 
year,  obtain  the  same  relief  by  a  supplemental  com- 
plaint, {Code,  §  121,)  which  then  becomes  the  proper 
course.  A  supplemental  complaint  is  in  effect,  a 
new  complaint  embracing  the  subject  matter  of  the 
first  complaint,  with  the  new  parties,  and  the  reasons 
for  continuing  the  action  in  their  names.  It  is 
nevertheless  a  continuation  of  the  original  suit. 


CHAPTER  IV. 

OF  THE  PLACE  OF  TRIAL. 

Having  determined  who  should  be  made  the 
party  plaintiff  and  who  the  party  defendant,  the 
next  step  preliminary  to  bringing  the  action,  is  to 
ascertain  the  place  of  trial. 

This  formerly  was  called  the  venue,  which  was  a 
statement  of  the  neighborhood  or  county  in  which  the 
facts  were  alleged  to  have  occurred,  and  where  the 
cauee  was  intended  to  be  tried. 

The  place  of  trial  will  depend  upon  the  subject 
of  the  action,  or  the  residence  of  the  parties  or  some 
of  them ;  in  other  words  whether  the  action  is  of  a 
local  or  transitory  nature. 

The  subject  therefore  will  be  treated  under  sepa- 
rate heads. 

SECTION  I. 

Of  Actions  which  must  be  Tried  in  the  County  where 
THE  Subject  of  the  Action  is  Situated. 

It  is  provided  by  section  123  of  the  Code,  that 
"Actions  for  the  following  causes,  must  be  tried  in 
the  county  in  which  the  subject  of  the  action  or 
some  part  thereof  is  situated :" 

1.  For  the  recovery  of  real  property,  or  of  an  estate  or  interest 
therein,  or  for  tlie  determination,  in  any  form,  of  such  right  or 
interest,  and  for  injuries  to  real  property  : 

2.  For  the  partition  of  real  property : 

3.  For  the  foreclosure  of  a  mortgage  of  real  property : 

4.  For  the  recovery  of  personal  property  distrained  for  any  cause. 


26  OF    THE    PLACE    OF    TRIAL. 

Actions  for  the  foregoing  causes  were  always 
local,  and  were  triable  only  in  the  county,  were  the 
subject  of  the  action  was  situated,  and  could  not  be 
tried  elsewhere,  without  the  order  of  the  court. 

The  first  subdivision,  embraces,  what  were  for- 
merly denominated  actions  of  ejectment,  waste, 
tresjDass  to  lands  and  the  like.  Actions  for  these 
and  similar  causes,  affecting  real  property  or  a  right 
or  interest  therein,  must  be  tried  in  the  county 
where  the  lands  are  situa'ed. 

The  second  and  third  subdivisions  require,  that  ac- 
tions for  the  partition  of  lands  and  for  the  foreclos- 
ure of  mortgages  upon  real  property,  should  also  be 
tried  in  the  county  where  the  lands  are  situated. 
And  this,  though  the  cause  of  the  action,  may  have 
arisen  elsewhere.  Hence,  a  mortgage  made  in  one 
county,  upon  lands  in  another  is  subject  to  this  rule, 
and  the  action  must  be  tried  in  the  county  where 
the  land  is  situated,  and  not  in  the  county  where 
the  mortgage  was  made,  or  where  the  transaction 
took  place,  which  resulted  in  the  execution  of  the 
mortgage.  See  Miller  vs.  Hull  and  wife,  1  Code  Rep., 
113,  114. 

The  fourth  subdivision,  is  confined  to  actions  for 
the  recovery  of  personal  property,  which  has  been 
distrained  for  any  cause,  and  is  similar  to  replevin, 
for  goods  taken  on  a  distress,  which  was  local,  by 
the  Revised  Statutes.  2  Rev.  Stat.,  430,  §  3.  As 
goods  could  be  distrained  only  for  the  non-payment 
of  rent,  it  is  not  probable  that  an  action  for  such 
cause  will  be  instituted,  as  distress  for  rent  is  now 
abolished.  Sess.  Laivs  1846,  369,  Chap.  274,  §  2. 

These  provisions,  requiring  the  action  to  be  tried 


OF  THE   PLACE    OF   TRIAL.  27 

in  the  county  where  the  subject  of  the  action  or 
some  part  thereof  is  situated,  are  subject,  however, 
to  the  power  of  the  court  to  change  the  place  of  trial, 
in  the  cases  now  provided  for  by  statute.  Code,  §  123. 
2  Rev.  Stat.,  409,  §  2.  For  the  manner  of  procuring 
the  change  of  the  phrce  of  trial  and  the  cases  in 
which  it  will  be  allowed,  see  post  p.  3J. 


SECTION  11. 

Of  Actions   tvhich  must  be   Tried   in   the    County 

WHERE  THE  CaUSE  OR  SOME  PART  THEREOF  ArOSE. 

By  section  124  of  the  Code,  it  is  provided  that  "  ac- 
tions for  the  following  causes,  must  be  tried  in  the 
county  where  the  cause,  or  some  part  thereof 
arose." 

1.  For  the  recovery  of  a  penalty  or  forfeiture  imposed  by  statute. 

2.  Against  a  public  officer  or  person,  specially  appointed  to 
execute  his  duties,  for  an  act  done  by  him  in  virtue  of  bis  office, 
or  against  a  person,  who  by  his  command  or  in  his  aid,  shall  do 
any  thing  touching  the  duties  of  such  officer. 

The  actions  enumerated  in  this  section,  were 
made  local  by  statute,  previous  to  the  Code.  2  Rev. 
Stat.,  395,  §§  8,  9.  Ibid,  277,  §  28.   Ibid,  330,  §  3. 

The  first  subdivision,  embraces  the  class  of  cases, 
which  fall  under  the  denomination  of  actions  for 
the  recovery  of  a  penalty  or  forfeiture,  specially  im- 
posed by  some  statute,  and  not  to  penalties  or  for- 
feitures imposed  by  contract  of  parties.  These  ac- 
tions must  be  tried  in  the  county  where  the  fact 
occurred  by  which  the  penalty  attaches  or  the  for- 
feiture arises.  Thus  a  penalty  of  twenty-five  dol- 
lars is  imposed  by  statute  for  selling  liquor  without 


28  OF    THE   PLACE    OF   TRIAL. 

a  license,  to  be  recovered  by  the  overseers  of  the 
poor.  Ill  such  a  case  the  action  must  be  tried  in 
the  county  where  the  liquor  was  sold,  and  cannot  be 
tried  elsewhere,  except  by  order  of  the  court. 

Where,  however,  the  penalty  or  forfeiture  is  im- 
posed for  an  offence  committed  on  a  lake,  river  or 
other  ."^tream  of  water,  situated  in  two  or  more 
counties,  the  action  may  be  brought  in  any  county 
bordering  on  such  lake,  river  or  stream  of  water, 
an  1  opposite  the  place  where  the  offence  was  com- 
mitted. {Code,  §  124,  suh.  1.)  Thus  if  an  offence  bo 
committed  on  the  waters  of  the  Hudson  River, 
where  it  divides  two  counties,  or  upon  a  stream 
running  between  two  counties,  the  action  can  be 
tried  in  either  county,  at  the  option  of  the  plaintiff. 

Actions  enumerated  in  the  second  subdivision  of 
this  section,  are  such  as  are  brought  against  any 
public  officer,  for  acts  done  by  him  virtute  officii,  and 
extend  to  actions  against  persons,  who  aid  the  officer 
in  the  performance  of  a  duty  either  by  or  without 
his  command.  In  the  latter  cases,  the  person 
against  whom  the  action  is  instituted,  must  have 
been  eno^ao^ed  in  aidino^  the  officer  while  in  the  dis- 
charge  of  some  duty  imposed  on  the  officer  by  lato, 
and  not  to  cases  where  the  officer  acts  without  au- 
thority. Thus,  the  statute  (2  Rev.  Stat.,  441,  §  80,) 
authorizes  a  Sheriff  to  command  the  power  of  his 
county,  to  aid  him  in  the  execution  of  process,  and 
every  male  inhabitant  of  the  county  is  required  to 
obey  the  command.  If  therefore  an  action  is 
brought  against  a  person  for  an  act  done  by  him 
while  thus  aiding  a  Sheriff,  he  may  require  the  ac- 
tion to  be  tried  in  the  county,  where  the  act  com- 
plained of  was  done. 


OF   THE    PLACE    OF    TRIAL.  29 

And  it  has  been  held  under  the  former  statute,  of 
which  the  foregoing  section  of  the  code  is  nearly  a 
transcript,  (2  Rev.  Stat.,  277,  §  28,)  that  the  statute, 
in  respect  to  actions  against  the  officer,  applies  only 
to  affirmative  acts,  and  not  to  mere  omissions  or 
neglect  of  official  duty.   13  Wend.  Rep.,  35,  266. 

The  same  power  is  given  to  the  court,  in  these 
cases,  to  change  the  place  of  trial,  in  cases  now 
provided  for  by  statute.  For  the  manner  of  procur- 
ing the  change  of  place  of  trial,  see  post  p.  31. 

SECTION  III. 

Of  Actions  which  must  be  Tried  in  the  County  in 
WHICH  THE  Parties  or  any  of  them  Reside  at 
the  Commencement  of  the  Action. 

By  section  125,  of  the  Code,  it  is  provided,  that  in 
all  other  cases,  not  mentioned  in  sections  123  and 
124,  the  action  shall  be  tried  in  the  county  in  which 
the  parties  or  any  of  them  reside  at  the  commence- 
ment of  the  action.  This  includes  all  such  personal 
actions  as  were  heretofore  denominated  transitory 
actions.  The  rule  that  formerly  prevailed  in  respect 
to  the  venue  in  transitory  actions,  is  changed,  so  far, 
as  it  is  now  required  that  some  one  of  the  parties, 
plaintiffs  or  defendants,  must  reside  in  the  county, 
where  it  is  intended  to  try  the  action.  It  is  not 
necessary  that  all  the  parties  should  reside  in  the 
county  designated  in  the  complaint ;  it  is  sufficient 
if  one  only  reside  there,  and  he  may  be  a  plaintilf  or 
defendant. 

Where  all  the  parties,  plaintiffs  as  well  as  defend- 
ants, are  non-residents  of  the  state,  the  plaintiff  may 


30  OF   THE    PLACE  OF    TRIAL. 

designate  in  his  complaint  the  county  in  which  he 
desires  the  trial  of  the  action  to  be  had.  Code,  §  125. 
But  if  only  the  plamfiff  is  a  non-resident,  the  trial 
must  be  had  in  the  county  where  the  defendant  re- 
sides. 

All  these  rules  and  provisions  in  relation  to  the 
place  of  trial,  are  subject,  however,  to  the  power  of 
the  court,  to  change  the  place  in  cases  now  provided 
by  statute.     As  to  which  see  post  p.  31. 

It  is  no  objection  to  the  complaint,  that  it  desig- 
nates an  improper  county  for  the  trial  of  the  action; 
the  only  remedy  for  the  defendant,  where  it  appears 
from  the  complaint,  that  the  wrong  county  has  been 
selected,  is  to  demand  in  writing,  which  he  may  do, 
at  any  time  before  the  time  for  answering  expires, 
that  the  trial  be  had  in  the  proper  county.  Code, 
§  126. 

There  may  be  cases  where  it  would  be  more  con- 
venient to  both  the  parties,  to  try  a  local  action,  in 
a  county  other  than  that  where  the  law  requires  it 
to  be  tried.  In  such  cases  it  may  be  tried  in  any 
county  with  the  consent  of  the  defendant,  which 
consent  will  be  presumed,  if  he  serves  his  answer, 
without  serving  a  demand  iw  writing,  that  the  trial 
be  had  in  the  proper  county. 

The  plaintiff,  therefore,  may  in  a  strictly  local  ac- 
tion, designate  in  his  complaint  an  improper  county 
for  the  trial  of  the  action,  subject  to  having  it  changed 
by  the  defendant's  demand.  And  he  may  try  it,  in 
such  improper  county  if  no  such  demand  is  made  ; 
and  it  will  be  valid  and  effectual  to  the  same  extent 
as  if  it  had  been  tried  in  the  proper  county. 


OF   THE    CHANGE    OF    THE  PLACE    OF    TRIAL.  31 


SECTION  IV. 

Of  the  Change  of  the  Place  of  Trl\l, 

The  statute,  limiting  the  trial  of  actions  to  certain 
counties,  as  has  been  stated,  confers  upon  the  court 
the  power  to  change  the  place  of  trial  to  another 
county  than  that  selected  by  the  plaintiff  and  men- 
tioned in  the  complaint,  in  all  those  cases  heretofore 
provided  for  by  statute. 

Concerning  actions  which  must  be  tried  in  the 
county  where  the  subject  of  the  action  is  situated, 
or  where  the  cause  or  some  part  thereof  arose,  and 
which  are  properly  speaking,  local  actions,  it  is  pro- 
vided by  statute  (2  R.  S.,  409,  §  2,  sub.  3)  that  the 
court  may  order  the  cause  to  be  tried  in  some  other 
county,  when  it  shall  appear  that  a  fair  and  impar- 
tial trial  cannot  be  had  in  the  county  which  the 
plaintiff  has  designated  in  his  complaint  as  the 
place  of  trial.  This  statute  does  not  extend  to,  nor 
does  it  authorise  the  change,  in  actions  against  pub- 
lic officers,  nor  against  persons  specially  appointed 
to  execute  his  duties,  nor  against  persons  aiding  the 
officer;  as  to  those  actions  the  court  has  not  the 
power  to  change  the  place  of  trial.  Nor  can  ac- 
tions of  a  local  nature,  such  as  actions  relating  to 
real  property  or  for  the  recovery  of  penalties  or  for- 
feitures imposed  by  statute,  be  tried  in  any  other 
county  than  that  in  which  the  subject  thereof  is  sit- 
uated, or  arose,  unless  it  appear  that  a  fair  and  im- 
partial trial  cannot  be  had  therein.  This  being  the 
only  ground  upon  which  to  move  for  a  change. 


32  OF    THE    CHANGE    OF    THE    PLACE    OF    TRIAL. 

In  the  following  actions,  the  place  of  trial  may 
be  changed  by  the  court,  when  it  appears  that  a  fair 
and  impartial  trial  cannot  be  had  in  the  county, 
designated  by  the  plaintiff  as  the  place  of  trial,  viz: 

1.  Actions  for  the  recoveryjOf  real  property,  or  of  an  estate  or  in- 
terest therein,  or  for  the  determination,  in  any  form,  of  such  right 
or  interest,  and  for  injuries  to  real  property: 

2.  Actions  for  injuries  to  the  person. 

In  the  following  actions,  the  place  of  trial  may 
be  changed  for  the  same  reason,  and  also  when  the 
court  shall  deem  it  necessary  for  the  convenience 
of  the  parties  and  their  witnesses,  viz : 

Actions  of  slander,  libel,  injuries  to  personal  property,  other  actions 
for  wrong's,  (except  for  injuries  to  real  property  and  to  the  per- 
son) and  upon  contracts. 

In  the  following  actions  the  place  of  trial  cannot 
be  changed,  viz: 

Actions  against  a  public  officer  or  person  specially  appointed  to 
execute  his  duties,  for  an  act  done  by  him  in  virtue  of  his  office, 
or  against  a  person,  who  by  his  command  or  in  his  aid,  shall  do 
any  thing  touching  the  duties  of  such  officer. 

In  regard  to  such  actions,  it  is  provided  by  statute, 
that  "if  it  shall  not  appear  on  the  trial,  that  the 
cause  of  such  action  arose  within  the  county  Avhere 
such  trial  is  had,  the  jury  shall  be  discharged,  and 
judgment  of  discontinuance  shall  be  rendered 
against  the  plaintiff."   2  R.  S.,  409,  §3. 

How  obtained  ] — A  change  of  the  place  of  trial  is 
obtained, by  a  motion  to  the  court  at  a  special  term, 
upon  an  afhdavit  of  the  facts  rendering  a  change 
necessary  or  proper,  and  is  conducted  in  all  respects 
like  other  special  motions. 

Ground.] — The  most  usual  ground  for  a  change  of 
the  place  of  trial  is,  that  a  greater  number  of  wit- 
nesses reside  in  the  county  to  which  it  is  proposed 


OF    THE    CHANGE    OF    THE    PLACE   OF   TRIAL.  33 

to  have  the  place  of  trial  changed,  than  in  the 
county  designated  in  the  complaint ;  and  this,  ordi- 
narily, is  sufficient  to  procure  the  order;  it  is  also 
proper  to  state  in  the  affidavit  that  the  transaction 
which  is  the  subject  of  the  action  occurred  in  the 
county  to  which  it  is  proposed  to  change  the  place 
of  trial,  which  will  be  prima  facie  evidence,  that  the 
witnesses  to  it,  reside  there. 

And  it  is  provided  by  rule,  (Rule  48,)  that  in  ad- 
dition to  what  has  usually  been  stated  in  the  affi- 
davit, either  party  may  state  the  nature  of  the  con- 
troversy, and  show  how  his  witnesses  are  material : 
and  may  also  show  where  the  cause  of  action,  or 
defence,  or  both  of  them,  arose.  These  facts  will 
be  taken  into  consideration  by  the  court,  in  fixing 
the  place  of  trial. 

The  largest  number  of  witnesses  will  not  always 
govern,  unless  it  clearly  appear  that  they  are  neces- 
sary and  material ;  for  if  the  party  seeking  the  order 
to  change  the  place  of  trial  should  swear  to  a  hun- 
dred and  sixteen  witnesses,  in  a  case  where  the 
court  could  see  that  such  a  number  could  not  be 
necessary  or  material,  the  motion  would  be  denied, 
though  the  opposite  party  should  swear  to  but  fifteen 
witnesses.   Wallace  vs.  Bond,  4  Hill  Rep.,  536. 

If  the  ground,  upon  which  the  change  is  applied 

for,  be,  that  a  fair  and  impartial  trial  cannot  be  had, 

in  the  county  mentioned  in  the  complaint,  the  facts 

upon  which  the  belief  is  founded,  must  be  stated  in 

the  affidavit  used  for  the  motion,  that  the  court  may 

judge,  if  there  is  sufficient  reason  for  supposing  a 

fair   and   impartial   trial  may  not  be  had    in  such 

county.     And  a  strong  case  must  be  made  out,  and 

the  facts  must  be  such  as  to  induce  a  reasonable 

3 


34  or  THE  CHANGE   OF   THE  PLACE   OF   TRIAL. 

belief,  that  justice  will  not  be  done,  if  the  place  of 
trial  is  retained. 

A  great  excitement,  prevailing  in  the  county,  in 
regard  to  the  subject  matter  of  the  action,  it  has 
been  held  was  ground  for  changing  the  place  of 
trial.  12  Wend.  Rep.,  203;  1  Hill  Rep,  179.  But  the 
mere  prejudice  of  the  community  against  turnpike 
roads,  is  no  ground  for  changing  the  place  of  trial, 
in  a  suit  by  a  turnpike  company,  for  running  a  road 
parallel  to  theirs.  3  Caines  Rep.,  127. 

When  ?nade.] — A  motion  to  change  the  place  of 
trial,  may  be  made  at  any  time  before  the  trial  of 
the  action,  either  before  or  after  answer.  But  gene- 
rally, however,  it  is  advisable  to  make  the  motion 
before  the  answer  is  served ;  for  if  it  is  delayed  until 
aher  answer  and  the  cause  should  be  noticed  for 
trial,  the  defendant  will  have  to  pay  the  plaintiff's 
costs  of  preparing  for  trial  and  perhaps  the  whole 
costs  of  the  circuit,  (5  Wend.  Rep.,  102,)  and  the 
costs  of  resisting  the  motion. 

It  seems,  however,  that  in  the  class  of  actions, 
which  are  local,  such  as  actions  which  must  be 
tried  in  the  county  in  which  the  subject  of  tiie 
action  or  some  part  thereof  is  situated,  {Code,  §  123,) 
or  actions  which  must  be  tried  in  the  county  where 
the  cause  or  some  part  thereof  arose,  {Code,  §  124,) 
that  if  the  plaintiff  has  designated  an  improper 
county  in  his  complaint,  as  the  place  of  trial,  the 
defendant  before  or  at  the  time  of  serving  his  an- 
swer, should  demand  in  writing  that  the  trial  be 
had  in  the  proper  county.  {Code,  §  126.)  And  if  the 
defendant  omit  to  do  so,  and  serves  his  answer,  the 
court  will  not,  upon  an  application  for  the  purpose, 


OF  THE  CHANGE  OF  THE  PLACE  OF  TRIAL.     35 

grant  the  motion.     At  any  rate,  the  defendant  would 
have  to  pay  costs  of  resisting  the  motion. 

Staying  Proceedings.] — If  the  defendant  wishes  to 
stay  the  proceedings  of  the  plaintiff,  in  order  to 
move  to  change  the  place  of  trial,  he  must  procure 
an  order  from  a  judge  of  the  court,  or  from  a  county 
judge.  This  order  is  usually  granted  upon  the 
affidavit,  to  be  used  on  the  motion  and  endorsed 
upon  it.  The  order  staying  proceedings  will  not  he 
granted  unless  it  appears  from  the  affidavit  and  pa- 
pers, that  the  defendant  has  used  due  diligence  in 
preparing  the  motion  for  the  earliest  practicable  day 
after  the  service  of  the  complaint.  Rule  47.  The 
judge  will  not  grant  an  order  to  stay  the  plaintiff  in 
putting  the  cause  at  issue,  or  taking  any  other  step 
except  giving  notice  and  subpoenaing  witnesses  for 
the  trial,  unless  he  inserts  in  the  order  a  special 
clause  to  that  effect.  Id.  Hence,  notwithstanding 
the  order,  unless  it  contains  such  special  clause, 
the  defendant  must  serve  his  answer,  within  the 
usual  time,  and  the  plaintiff  may  reply  thereto. 
The  order  does  not  stay  any  of  these  proceedings, 
and  it  only  prevents  the  plaintiff  from  noticing  the 
cause  for  trial  and  subpoenaing  his  witnesses. 

If  the  plaintiff  can  successfully  resist  the  motion, 
he  may  avoid  the  order  staying  his  proceedings  by 
getting  it  revoked.  To  do  this,  he  must  present  to 
the  officer  who  granted  the  order,  an  affidavit  show- 
ing such  facts,  as  will  entitle  the  plaintiff,  according 
to  the  settled  practice  of  the  court,  to  retain  the 
place  of  trial;  and  if  the  officer  is  satisfied,  that  the 
motion  will  be,  or  ought  to  be  denied,  he  will  revoke 
the  order  to  stay  proceedings.  Rule  47.    The   plain- 


36  OF    THE    CHANGE    OF   THE   PLACE    OF   TRIAL. 

tiff  must  give  immediate  notice  of  such  revocation 
to  the  defendant's  attorney.  Id. 

Notwithstanding,  such  order  is  revoked,  the  mo- 
tion may  still  be  made,  and  the  plaintiff  must  resist 
it  in  the  usual  way :  the  effect  of  the  revocation 
being  simply  to  enable  the  plaintiff  to  notice  the 
cause  for  trial. 


CHAPTER  V. 

OF  THE  GENERAL  -RULES  OF  PLEADINGS. 

Among  the  radical  changes  in  the  s^^stem  of  prac- 
tice and  pleading,  which  the  Code  of  Procedure  has 
produced,  the  most  essential  and  absolute,  is  that 
which  relates  to  the  pleadings  in  the  action.  Fic- 
tions of  all  kinds  are  abolished  and  concise  and  in- 
telligible language  substituted ;  and  the  whole  sys- 
tem is  intended  to  be  "  simple  in  its  construction, 
easily  understood  and  efficient  for  all  the  purposes 
of  justice." 

SECTION  I: 

Of  the  Pleadings,  and  herein  of  what  Pleadings  are. 

The  pleadings  are  the  written  allegations  of  the 
plaintiff's  cause  of  action  on  the  one  side,  and  the 
defence  thereto  of  the  defendant  on  the  other. 

There  are  four  kinds  of  pleadings  allowed  in  the 
prosecution  and  defence  of  an  action,  viz : 

1.  The  Complaint; 

2.  The  Answer; 

3.  The  Reply;  and 

4.  The  Demurrer.  (  Code,  §  156.) 

These  comprise  all  the  pleadings  that  can  be  used 
in  the  progress  of  the  cause,  and  their  object  is  to 
present  the  facts  on  which  the  court  is  to  pronounce 
the  law,  and  to  reduce  the  issue  to  the  real  matter 


38  WHAT    WILL   BE    SUFFICIENT    IX    A   PLEADING. 

in  dispute.  For  this  purpose  it  is  provided  that  the 
pleading  shall  contain  a  concise  statement  of  the 
facts  constituting  the  cause  of  action,  or  defence, 
without  repetition,  and  in  such  a  manner  as  to 
enable  a  person  of  common  understanding  to  know 
what  is  intended. 

SECTION  II. 

Of  what  will  be   Sufficient  in  a  Pleading. 

As  the  design  of  a  pleading  is  to  present  to  the 
Court  a  statement  of  the  facts  constituting  the 
cause  of  action  or  defence,  that  the  issue  formed 
may  he  tried,  it  is  in  general  sufficient  if  the  plead- 
ing on  the  one  side  contain  a  specific  averment  of 
the  precise  nature  of  the  cause  of  action,  and  on  the 
other  a  general  or  specific  denial  thereof,  or  a  denial 
thereof  according  to  information  and  belief,  or  of 
any  knowlege  thereof,  sufficient  to  form  a  belief. 
Code,  §  149,  suh.  1. 

It  is  not  necessary  to  set  forth  in  a  pleading  the 
items  of  an  account  therein  alleged,  but  the  party 
must  furnish  the  adverse  party  with  a  copy  verified 
by  his  oath  within  ten  days  after  a  demand  for  that 
purpose.  Code,  §  158. 

So  in  pleading  a  judgment  or  other  determination 
of  a  court  or  officer,  of  special  jurisdiction,  it  is  not 
necessary  to  state  the  facts  conferring  jurisdiction, 
but  such  judgment  or  determination  may  be  stated 
to  have  been  duly  given  or  made.  If  such  allega- 
tion however,  be  controverted  by  the  adverse  party, 
the  party  pleading  is  bound  to  establish  on  the  trial, 
the  facts  conferring  jurisdiction.  Code,  §  161. 


WHAT    WILL    BE    SUFFICIENT    IN    A    PLEADING.  39 

So,  in  pleading  the  performance  of  conditions  pre- 
cedent in  a  contract,  it  is  not  necessary  to  state  the 
facts  showing  such  performance  ;  but  it  may  be 
stated  generally,  that  the  party  duly  performed  all 
the  conditions  on  his  part;  and  if  such  allegation 
be  controverted,  the  party  pleading  is  bound  to  es- 
tablish on  the  trial  the  facts  showing  such  perform- 
ance. Code,  §  162. 

So,  in  pleading  a  private  statute  or  any  right  de- 
rived therefrom,  it  is  sufficient  to  refer  to  such  stat- 
ute, by  its  title  and  the  day  of  its  passage,  and  the 
court  will  thereupon  take  judicial  notice  thereof. 
Code,  §  163. 

So,  in  an  action  for  libel  or  slander,  it  is  not  ne- 
cessary to  state  in  the  complaint,  any  extrinsic 
facts,  for  the  purpose  of  showing  the  application  to 
the  plaintiff,  of  the  defamatory  matter,  out  of  which 
the  cause  of  action  arose.  It  is  sufficient  to  state 
generally,  that  the  same  was  published  or  spoken 
concerning  the  plaintiff;  if  the  allegation  is  con- 
troverted, the  plaintiff  must  establish  on  the  trial 
that  it  was  so  published  or  spoken.  Code,  §  164. 

It  is  not  intended  to  do  any  thing  more  than  to 
lay  down  the  geiieral  rules  of  pleading,  as  applicable 
to  all  kinds  of  pleading,  reserving  it  for  another  part 
of  this  work,  to  speak  of  each  of  the  dilfercnt  kinds 
of  pleadings  in  their  appropriate  order. 


40      CONSTRUCTON  AND  EFFECT  OF  PLEADINGS. 


SECTION  III. 

Of  THE  Construction  of   Pleadings,    and  herein  of 
THE  Effect  of  Pleadings. 

The  great  reform  which  the  Code  has  wrought, 
in  pleadings,  being  designed,  as  we  have  stated,  to 
simplify  the  issue  to  be  tried,  and  strip  the  case  of 
all  the  perplexing  questions  involved  in  the  old  sys- 
tem, the  Legislature  in  adopting  the  Code,  have 
made  liberal  and  enlightened  rules  for  the  construc- 
tion of  pleadings  and  the  effect  they  are  to  have 
upon  the  issue  presented  for  trial. 

Accordingly,  it  is  provided,  that  in  the  construc- 
tion of  a  pleading,  for  the  purpose  of  determining 
its  effect,  its  allegations  shall  be  liberally  construed, 
with  a  view  to  substantial  justice  between  the  par- 
ties. Code,  §  159. 

The  great  object  to  be  attained  in  the  judicial 
construction  of  a  pleading,  is,  if  possible,  to  give 
legal  effect  to  its  statement  of  facts.  The  court, 
will  therefore,  be  liberal  in  adjudging  whether  it  be 
sufficient  or  not  to  apprise  the  adverse  party  of  what 
is  intended,  or  whether  the  facts  as  alleged,  consti- 
tute a  legal  or  equitable  cause  of  action  or  defence  ; 
and  the  pleading  will  be  deemed  sufhcient,  if  the 
party  complaing  of  its  defects,  is  net  injured  there- 
by. The  objections  to  it,  must  in  all  cases  be  sub- 
stantial, not  technical. 

Notwithstanding  the  allegations  in  a  pleading  are 
to  be  liberally  construed,  care  must  be  taken  that 
they  contain  a  sufficient  statement  of  facts  to  con- 


MISTAKES   AND   AMCNDxMENTS    OF    PLEADINGS.         41 

stitute  a  cause  of  action  or  defence,  for  the  court 
cannot  supply  facts,  Ihoagh  they  can  exercise  a  lib- 
eral discretion,  in  determining  the  effect  of  those 
that  appear.  The  pleading  therefore  must  be  such, 
that  by  a  liberal  and  fair  construction,  with  a  view- 
to  substanlial  justice  between  the  parties,  the  court 
can  give  effect  to  the  allegations  it  contains, 

SECTION  IV. 

Of  Mistakes  in  Pleading,  and  herein  of  Amend- 
ments OF   Pleading. 

It  is  provided  by  Section  173  of  the  Code,  that  the 
court  may  at  any  time,  in  furtherance  of  justice,  and 
on  such  terms  as  may  be  proper,  amend  any  plead- 
ing or  proceeding,  by  adding  or  striking  out  the 
name  of  any  party,  or  by  correcting  a  mistake  in 
the  name  of  a  party,  or  a  mistake  in  any  other  re- 
spect, or  by  inserting  other  allegations  material  to 
the  case,  or  by  conforming  the  pleading  or  proceed- 
ing to  the  facts  proved. 

The  power  here  conferred,  upon  the  court  covers 
every  case  of  a  mistake  or  omission  in  the  pleading 
or  proceeding,  and  the  main  question  to  be  deter- 
mined, is  as  to  the  terms  upon  which  the  amend- 
ment may  be  made.  The  application  for  leave  to 
amend,  is  always  addressed  to  the  sound  discre- 
tion of  the  court.  It  is  not  strictly  a  right,  but  a 
favor  which  is  demanded.  The  costs  to  be  paid  for 
leave  to  amend,  are  also  entirely  in  the  discretion  of 
the  court. 

Upon  what  terms.] — The  terms  upon  which  a  party 
will  be   allowed  to  amend  a  pleading;  will  depend 


42  MISTAKES    AND    AMENDMENTS    OF    PLEADINGS. 

upon  the  stage,  of  the  action,  and  the  effect  it  will 
have  upon  the  other  pleadings  and  proceedings  in 
the  cause.  If  the  motion  be  to  amend  the  com- 
plaint, after  the  cause  is  at  issue,  and  a  new  answer 
is  thereby  rendered  necessary,  the  costs  of  the  an- 
swer will  ordinarily  be  imposed  as  the  terms  of 
granting  the  amendment.  And  if  the  cause  has 
been  noticed  for  trial,  and  a  circuit  is  lost,  perhaps 
the  costs  of  the  circuit  will  be  imposed,  in  addition. 
Brown  Ys  Babcock,  i.  Code  Rep.,  66. 

So,  if  the  defendant  applies  for  leave  to  amend 
his  answer,  or  the  plaintiff  his  reply,  after  the  cause 
is  at  issue,  and  noticed  for  trial,  the  costs  of  the  cir- 
cuit a  id  the  cost  of  opposing  the  motion  will  be  re- 
quired to  be  paid,  as  the  terms  of  granting  the  amend- 
ment. 

It  is  not  necessary  that  every  allegation  in  a  plead- 
ing should  be  exactly  supported  by  the  proof,  on  the 
trial.  Hence,  no  variance  between  the  allegation 
and  the  proof,  will  be  deemed  a  material  variance, 
so  as  to  require  an  amendment,  unless  it  has  actual- 
ly misled  the  adverse  party  to  his  prejudice  in  main- 
taining his  action  or  defence  upon  the  merits.  Code, 
§  169.  And  where  the  variance  is  not  material,  and 
the  adverse  party  is  not  prejudiced,  the  court  will 
direct  the  facts  to  be  found  according  to  the  evi- 
dence, without  regard  to  the  variance,  or  for  the 
furtherance  of  justice,  will  allow  an  immediate 
amendment  of  the  pleading  to  le  made  on  the  trial, 
without  costs.    Code,  §  170. 

If,  however,  a  party  alleges  that  he  has  been 
actually  misled  l)y  a  variance  between  the  pleading 
and  the  proof,  he  must  satisfy  the  court,  by  ojjidavit, 


MISTAKES    AND    AMENDMENTS    OF   PLEADINGS.  43 

in  what  respect  and  to  what  extent  he  has  been 
misled.  The  court  will  not  judge  from  the  variance 
itself,  nor  determine  that  the  party  has  been  misled 
from  the  fact  that  the  proof  does  not  support  the 
allegation  in  the  pleading,  but  the  party  must  prove 
to  the  satisfaction  of  the  court,  that  he  has  been 
actually  misled  to  his  prejudice.    Code,  §  169. 

Notwithstanding  the  party  may  have  been  misled 
by  a  variance,  the  court  may  order  the  pleading  to 
be  amended,  upon  such  terms  as  shall  be  just.  Code, 
§  169.  It  is  in  the  discretion  of  the  court,  however, 
whether  to  grant  an  amendment,  or  non-suit  the 
plaintiff,  or  exclude  the  defence  of  the  defendant. 

There  are  a  class  of  what  are  termed  variances, 
which  is  not  reached  by  the  very  liberal  rules,  as 
above  laid  down,  and  which  cannot  be  remedied 
by  an  amendment.  Properly  speaking,  however, 
they  are  not  variances,  but  an  entire  failure  of 
proof 

It  is  provided  by  §  171  of  the  Code,  that  where  the 
allegation  of  the  cause  of  action  or  of  the  defence, 
to  which  the  proof  is  directed,  is  unproved,  not  in 
some  particular  or  particulars  only,  but  in  its  entire 
scope  and  meaning  it  will  not  be  deemed  a  variance, 
but  a  failure  of  proof. 

In  such  cases  the  court  is  not  authorised  to  grant 
an  amendment,  but  must  non-suit  the  plaintiff  or 
overrule  the  defence,  and  give  judgment  accord- 
ingly. 

In  order  to  amend  there  must  be  something  to 
amend  upon,  and  it  may  be  done  by  adding  to  or 
taking  from  the  pleading. 


44  MISTAKES    AND    AMENDMENTS    OF    PLEADINGS. 

Thus  the  plaintiff  will  be  allowed  to  amend  his 
complaint,  by  adding  a  new  statement  of  facts,  not 
inconsistent  with  his  former  allegations,  analogous 
to  another  count,  under  the  former  practice.  And 
this  will  be  allowed  even  after  trial,  a  new  trial 
having  been  ordered.  Burnan  and  Bahcock  vs.  Halloren, 
1.  Code  Rep.,  51. 

So  an  amendment  will  be  allowed  on  the  trial, 
by  striking  out  the  name  of  one  of  the  defendants, 
against  whom  there  is  no  evidence.  Bemis  vs.  Bran- 
son and  Crocker,  1.  Code  Rep.,  27.  Exs.  of  XeeseYS.  Ful- 
lerton,  ibid  52.  The  costs  of  such  defendant,  however, 
will  be  imposed  as  a  condition.  3id. 

So  the  plaintiff  may  amend  by  adding  a  party, 
if  it  do  not  change  substantially  the  cause  of 
action  or  defence,  and  it  appear  to  be  "in  further- 
ance of  justice."  He,  however,  must  pay  costs. 
Butcher  vs.  Slack,  3  How.  Pr.  T.  Rep.,  322.  Or  by 
striking  out  a  party  in  a  certain  case.  Code,  §  136, 
sub.  4. 

Amendments  of  course.'] — There  are  certain  amend- 
ments which  may  be  made  of  course,  that  is,  with- 
out motion.  Thus  a  party  may  amend  a  pleading, 
of  course,  without  paying  costs,  and  without  preju- 
dice to  any  proceeding  already  had,  at  any  time, 
before  the  period  of  answering  it  shall  expire.  Code, 
§  172. 

So,  after  a  demurrer  has  been  put  in  to  a  pleading, 
the  pleading  demurred  to  may  be  amended,  of 
conrse  and  without  costs,  within  twenty  days  there- 
after; but  the  party  cannot  so  amend  more  than 
once.  After  that,  a  motion  for  leave  to  amend 
must  be  made  to  the  court.  Code,  §  174. 


OF    THE    JOINDER    OF  ACTIONS.  45 

In  addition  to  the  very  ample  power  given  to  the 
court  to  allow  amendments  to  be  made,  for  the 
"furtherance  of  justice"  in  any  stage  of  the  action, 
upon  such  terms  as  shall  be  proper ;  the  court  are 
directed  to  disregard  any  error  or  defect  in  the  plead- 
ings or  proceedings,  which  shall  not  affect  the  sub- 
stantial rights  of  the  adverse  party:  and  it  is  pro- 
vided that  no  judgment  shall  be  reversed  or  affected 
by  reason  of  such  error  or  defect.  Codcy  §  176. 

Amendment  of  summons.'] — A  defective  summons, 
cannot  be  amended  of  course.  The  court,  however, 
has  the  power,  it  being  a  ^'' proceedings^  in  the  action, 
to  grant  an  amendment,  upon  terms,  in  any  stage 
of  the  suit.  The  same  rules  apply  to  this  amend- 
ment by  the  court,  as  to  amendments  of  pleadings, 
and  it  will  be  allowed  upon  the  same  terms.  Dihhlee 
vs.  Mason,  1  Code  Rep.,  37. 

The  court  may  also  disregard  any  error  or  defect, 
in  a  summons,  which  shall  not  affect  the  substantial 
rights  of  the  adverse  party.  The  contrary,  however, 
has  been  held.   1  Code  Rep.,  37. 


SECTION  V. 

Of  the  different  Causes  of  Action  that  may  be  in- 
cluded IN  one  Complaint;  and  herein  of  the  Mis- 
joinder of  Actions. 

The  rules  heretofore  prevailing  in  respect  to  the 
joinder  of  actions,  have  been  full  of  subtle  distinc- 
tions and  perplexing  difficulties.  The  greatest  care 
and  skill  was  required  on  the  part  of  the  pleader,  to 
avoid  duplicity  and  surplusage  and  guard  against  a 


46  OF    THE   JOINDER   OF   ACTIONS. 

misjoinder  of  causes  of  actions  or  of  inconsistent 
counts. 

Actions  that  may  be  united  in  the  same  complaint.] — 
Section  167  of  the  Code,  provides,  that  the  plaintiff 
may  unite  several  causes  of  action  in  the  same 
complaint,  where  they  all  arise  out  of, 

1.  Contract,  express  or  implied. 

This  covers  suits  on  specialties,  (contracts  under 
seal,)  as  well  as  simple  contracts,  {not  under  seal.) 
A  claim  upon  a  promissory  note,  may  be  united 
with  a  claim  upon  a  bond,  provided  the  parties  are 
the  same:  A  claim  for  goods,  wares  and  merchan- 
dise sold  may  be  united  with  a  claim  arising  under 
a  deed,  provided  the  parties  are  the  same,  and  it 
does  not  require  a  different  place  of  trial.     Or, 

2.  Injuries,  with  or  v/ithout  force,  to  the  person : 

Such  as  assault  and  battery,  and  false  imprison- 
ment, both  of  which  may  be  included  in  one  action 
against  the  same  person.     Or, 

3.  Injuries,  with  or  without  force,  to  property  : 

This  includes  injuries  to  real  as  well  as  personal 
property,  and  causes  of  action  for  both  may  be  in- 
cluded in  the  same  action,  hence  trespass  on  lands 
may  be  united  with  trespass  to  personal  property,  in 
the  same  action.     Heretofore  this  could  not  be.     Or, 

4.  Injuries  to  character  : 

Such  as  slander  and  libel,  which  may  be  united 
in  the  same  complaint.     Or, 

5.  Claims  to  recover  real  property,  with  or  without  damages,  for 
withholding  thereof,  and  the  rents  and  profits  thereof: 

Formerly  an  action  of  ejectment,  which  was  an 
action  for  the  recovery  of  lands,  could  not  be  united 
with  any  other  cause  of  action.     The  action  being 


OF  THE  MISJOINDER  OF   ACTIONS.  47 

determined  in  favor  of  the  plaintiff,  he  had  to  insti- 
tute another  proceeding  to  recover  damages  for  the 
withholding,  or  to  recover  the  rents  and  profits, 
which  was  called  a  suggestion  for  mesne  profits;  to 
this  suggestion  the  defendant  might  plead,  and  the 
issue  was  tried.  Now  all  these  questions  are  dis- 
posed of  in  one  action.  The  complaint  for  the  re- 
covery of  the  land  may  also  include  the  claim  for 
damages  for  withholding  it,  or  for  the  rents  and 
profits.     Or, 

6.  Claims  to  recover  personal  property,  with  or  without  damag;es5 
for  the  withholding  thereof: 

The  only  action  heretofore,  for  the  recovery  of  per- 
sonal property,  was  Replevin,  in  which  the  plaintiff 
could  recover  not  only  the  property  itself,  but  dama- 
ges for  the  detention.  The  cause  of  action  men- 
tioned in  the  last  subdivision,  is  like  that  for  which 
replevin  heretofore  lay.     Or, 

7.  Claims  against  a  trustee,  by  virtue  of  a  contract  or  by  operation 
of  law. 

It  must  be  observed,  that  in  uniting  several  causes 
of  action  in  the  same  complaint,  they  must  affect 
all  the  parties  to  the  suit,  and  not  require  different 
places  of  trial.  For  a  complaint  containing  one 
cause  of  action  against  the  defendant  individually^ 
and  another  against  him,  in  his  official  capacity,  would 
be  bad,  if  the  place  of  trial  designated  in  the  com- 
plaint was  not  the  proper  county  for  the  trial  of  an 
action  against  a  public  officer.  So,  two  defendants 
cannot  be  sued  in  the  same  action,  upon  contracts 
made  by  each,  but  not  by  both. 

Actions  that  may  not  he  united  in  the  same  complaint.] — 
In  order  to  authorise  the  union  of  several  causes  of 


48  OF   THE    MISJOINDER    OF  ACTIONS. 

action  in  the  same  complaint,  they  must  belong  to 
one  only  of  the  classes  which  we  have  enumerated. 
It  would  be  improper  to  unite  a  cause  of  action 
embraced  within  the  first  subdivision,  with  a  cause 
of  action  embraced  within  the  second  or  any  other 
subdivision.  For  example :  a  cause  of  action  on  a 
promissory  note  cannot  be  united  with  one  for  an 
injury  to  the  person — nor,  for  injury  to  property, 
with  injury  to  the  person.  The  causes  of  action 
must  belong  to  one  and  cannot  belong  to  all  of  the 
classes. 

In  stating  several  causes  of  action  in  the  same 
complaint,  they  must  be  separately  set  out ;  because, 
the  defendant  may  have  a  defence  to  one  and  not 
to  the  other,  so  he  may  demur  to  one,  and  answer 
as  to  the  other. 


PART  II. 


OF  THE  COMMENCEMENT,  PROSECUTION   AND 
DEFENCE  OF  ACTIONS. 

According  to  the  rules  and  practice  of  the  courts, 
and  the  provisions  of  the  statute,  as  they  formerly 
existed,  there  were  several  and  different  modes  of 
commencing  a  suit.  These  modes  differed  accord- 
ingly, as  the  action  was  of  a  legal  or  equitable  na- 
ture. In  the  one  case,  the  manner  was  regulated 
somewhat  by  the  form  of  the  action,  or  the  charac- 
ter of  the  parties :  as  in  suits  against  corporations 
and  in  actions  of  replevin,  the  suit  was  commenced 
by  summons ;  but  in  other  actions,  usually  by  writ, 
or  by  declaration.  And  in  suits,  purely  of  an  equi- 
table nature,  the  first  proceeding  towards  bringing 
an  action,  was  the  filing  a  Bill,  followed  by  the  ser- 
vice of  a  subpoena,  upon  the  defendant.  Among 
the  many  and  radical  changes  effected  by  the  Code 
of  Procedure,  the  manner  of  bringing  a  suit,  is,  pro- 
bably the  most  thorough  and  complete.  The  dis- 
tinctions, which  formerly  existed  in  this  respect, 
between  actions  at  law  and  suits  in  equity,  have 
been  entirely  removed ;  and  now,  there  is  but  one 
mode  of  commencing  an  action  for  the  enforcement 


50  COMMENCEMENT,    ETC.,    OF   ACTIONS. 

or  protection  of  private  rights,  and  the  redress  or  pre- 
vention of  private  wrongs.  Whatever,  therefore,  is 
applicable  to  a  legal  action,  is  necessarily  so,  to  an 
equitable  action,  and  one  practice  must  govern  all 
cases. 


CHAPTER  I. 

OF  THE  COMMENCEMENT  OF  AN  ACTION,  AND 
THE  PROCEEDINGS  ON  THE  PART  OF  THE 
PLAINTIFF,  TO  THE  ANSWER  OR  DEMURRER 
OF  THE  DEFENDANT,  OR  TO  AND  INCLUDING 
JUDGMENT  FOR  WANT  OF  AN  ANSWER. 


SECTION  I. 

Of  the  Mode  of  Commencing  an  Action. 

Civil  actions,  brought  in  the  courts  of  record  in 
this  state,  are  commenced,  by  the  service  of  a  sum- 
mons. Code,  §  127. 

Every  description  of  action,  whether  of  a  purely 
equitable  or  legal  nature,  is  commenced  in  the  same 
manner.  A  summons  is  a  process,  though  somewhat 
in  the  nature  of  a  notice:  it  does  not  issue  out  cf 
the  court,  but  is  issued  by  the  party  or  his  attorney. 
It  partakes  much  of  the  character  of  a  notice,  in- 
forming the  defendant  that  the  plaintiff  has  com- 
menced an  action  against  him,  and  requiring  him 
to  make  his  defence,  if  he  has  any  to  make. 

The  summons,  is  the  first  proceeding  in  the  suit, 
and  is  the  only  notice  the  defendant  has,  that  he  is 
required  to  answer  the  complaint.  For  the  contents 
(f  the  summons  and  mode  of  service,  see  post. 


52  MODE    OF    COMMENCING    AN   ACTION. 

The  service  of  the  summons,  upon  the  defendant 
is  the  commencement  of  the  action.  Code,  §  99,  siih. 
1.  If  there  be  two  or  more  defendants,  the  service 
upon  one,  will  be  suflicient.  Ibid.  Without  such 
service  the  action  is  not  deemed  to  be  commenced. 

For  the  purpose  of  saving  a  cause  of  action  from 
the  operation  of  the  statute  of  limitations,  the  suit 
will  be  deemed  to  be  commenced,  although  the 
summons  is  not  actually  served  upon  the  defendant, 
provided  it  is  delivered  to  the  sheriff,  or  other  officer 
of  the  county,  in  which  the  defendants  or  one  of 
them  usually  or  last  resided,  with  an  intent  that  it 
shall  be  actually  served:  or  if  a  corporation  is  de- 
fendant, it  must  be  delivered  to  the  sheriff  or  other 
officer  of  the  count}'-,  in  which  such  corporation  is 
established  by  law,  or  where  its  general  business  is 
transacted,  or  where  it  keeps  an  office  for  the  trans- 
action of  business,  with  a  like  intent  to  have  the 
summons  actually  served  upon  such  defendant. 
Code,  §  99,  suh.  2. 

Thus,  in  a  case  where  the  defendant  is  concealed 
within  the  state,  or  has  departed  therefrom,  so  that 
actual  service  cannot  be  made  upon  him,  and  the 
statute  of  limitations  is  about  to  attach  to  the  cause 
of  action,  the  consequences  of  the  statute  may  be 
avoided  by  delivering  the  summons,  to  the  sheriff 
or  other  officer  of  the  county,  where  the  defendant 
usually  cr  last  resided,  with  the  intent  to  have  the 
same  actually  served,  as  soon  as  the  same  can  be 
done.  The  intent  must  be  bona  fide ;  for  the  ac- 
tion will  not  be  deemed  to  be  commenced  by  the 
delivery  alone,    unless    there   be  an  intent  in  good 


OF    ARREST    AND    BAIL.  53 

faith  to  have  the  summons  served  upon  the  defend- 
ant. 2  Wend.  Rep.,  234.  2  Hill  Rep.,  598. 

For  any  purpose,  whether  to  save  from  the  opera- 
tions of  the  statute  of  limitations,  or  otherwise,  the 
action  is  deemed  to  be  commenced  from  the  time 
the  complaint  is  verified,  notwithstanding  the  sum- 
mons is  not  immediately  served  upon  the  defendant, 
provided,  the  summons  or  other  process  issued  upon 
the  complaint,  is  actually  delivered  to  the  sheriff  or 
other  officer,  on  the  same  day  the  complaint  is  veri- 
fied, or  within  the  next  ^?;e  succeeding  days,  and  be 
followed  by  the  actual  service  thereof,  on  the  de- 
fendants or  one  of  them.  Code,  §  99,  sub.  2.  It 
seems  the  service  may  be  made  at  any  time  after- 
wards. If  therefore  the  complaint  is  verified,  and 
the  summons  is  delivered  to  the  officer,  within  the 
time  prescribed,  the  action  will  be  deemed  com- 
menced from  the  time  of  verifying  the  complaint, 
notwithstanding  the  summons  is  not  served  in  one, 
two  or  five  years  afterwards. 

SECTION  II. 

Of  Arrest  and  Bail. 

Prior  to  the  passage  of  the  "  Act  to  abolish  impris- 
onment for  debt,  and  to  punish  fraudulent  debtors," 
{Laws  ()f  ISdl ,  chap.,  300,)  a  defendant  might  be  ar- 
rested and  bail  required,  in  most  of  the  ibrms  of 
actions  ex  contractu,  as  of  course.  That  act,  however, 
abolished  the  right  of  arrest,  and  of  holding  to  bail, 
in  all  actions  founded  upon  contract  express  or  im- 
plied, except  in  certain  specified  cases.  But  the 
act  of  1831  did  not,  in  general  afifect  actions  in  form 


54  OF    ARREST    AND    BAIL. 

ex  delicto.     They  remained   as  under   the   Revised 
Statutes. 

It  is  now  provided  by  Section  179  of  the  Code,  that 
a  defendant  may  be  arrested,  in  the  following  cases. 

1.  In  an  action  for  the  recovery  of  damages,  on  a  cause  of  action, 
not  arising  out  of  contract,  where  the  defendant  is  not  a  resident 
of  the  state,  or  is  about  to  remove  therefrom,  or  where  the  ac- 
tion is  for  an  injury  to  person  or  character,  or  for  injuring,  or 
for  unlawfully  taking,  detaining,  or  converting  property. 

This  includes  that  class  of  actions  which  were 
formerly  denominated  actions  ^:e  delicto,  and  excludes 
actions  arising  upon  a  contract.  It  authorizes  the 
arrest  of  a  defendant  for  any  tortious  act,  either  in 
respect  to  person  or  property,  whether  the  injury  is 
of  a  wilful  nature  or  not.  Thus,  for  an  assault  and 
battery,  slander  or  libel,  or  trespass  upon  property, 
real  or  personal — or  the  unlawful  taking,  detention 
or  conversion  of  personal  property,  are  cases  in 
which  the  defendant  can  be  arrested  and  held  to 
bail.  In  other  actions  for  torts,  where  the  act  com- 
plained of,  is  not  among  those  above  mentioned,  it 
must  appear  that  the  defendant  is  a  non-resident  of 
the  state,  or  is  about   to  remove  from  the  state,   Or 

2.  In  an  action  for  a  fine  or  penalty,  or  on  a  promise  to  marry,  or 
for  money  received,  or  property  embezzled  or  fraudulently  mis- 
applied by  a  public  officer,  or  by  an  attorney,  solicitor  or  coun- 
sellor, or  by  an  officer  or  agent  of  a  corporation  or  banking  asso- 
ciation, in  the  course  of  his  employment  as  such,  or  by  any 
factor,  agent,  broker  or  other  person  in  a  fiduciary  capacity,  or 
for  any  misconduct  or  neglect  in  office  or  in  a  professional  em- 
ployment. 

In  these  cases  the  defendant  may  be  arre:<ted  of 
course,  upon  the  plaintiiPs  obtaining  an  order  from 
the  judge,   and  it  is  not  necessary  that  the  defend- 


OF    ARREST  AND    BAIL.  55 

ant  should  be  a  non-resident,  or  be  about  to  remove 
from  the  state,  or  that  the  act  is  a  wilful  one,    Or 

3.  In  an  action  to  recover  the  possession  of  personal  property 
unjustly  detained,  where  the  property  or  any  part  thereof  has 
been  concealed,  removed,  or  disp  )3ed  of  so  that  it  cannot  be 
found  or  taken  by  the  sheriff. 

This  is  a  substitute  for  the  proceedings  in  an  ac- 
tion of  replevin,  which  authorized  the  arrett  of  the 
defendant  in  cases  where  the  property  sought  to  be 
replevied  could  not  be  found.  Before  a  judge  will 
grant  an  order  of  arrest  in  such  cases  he  must  be 
satisfied  by  proof  that  the  property  is  concealed  or 
removed,  or  disposed  of  An  attempt  must  be  made 
by  the  sheriff  to  take  the  property ;  if  he  fail  to  find 
it,  and  there  is  good  reason  to  believ^e,  it  is  removed 
from  the  county  of  the  sheriff',  or  is  concealed  so 
that  it  cannot  be  found  by  the  sheriff',  then  upon 
proof  of  \\ie  facts,  an  or.Ier  may  be  obtained  for  the 
arrest  of  the  defendant.  And  the  facts  should  be  set 
out  in  the  affidavit  upon  which  the  application  for 
an  order  of  arrest  is  founded.  The  judge  is  to  be 
satisfied,  that  it  is  a  proper  case  for  the  order,  and  the 
mere  belief  o^  the  party,  or  of  the  sheriff",  that  the 
property  has  been  removed,  or  concealed,  or  dispos- 
ed of,  will  not  be  sufficient;  but  the  facts  upon 
which  the  belief  is  founded  shouhl  be  stated.    Or 

4.  Where  the  defendant  has  been  g-uilty  of  a  fraud,  in  contracting 
the  debt,  or  incurring-  the  obligation  for  which  the  action  is 
broug^ht,  or  in  concealing^  or  disposing  of  the  property,  for  the 
taking,  detention  or  conversion  of  which  the  action  is  brought. 

Heretofore,  the  actions  embraced  in  this  subdi- 
vision were  not  bailable.  Now,  however,  a  defend- 
ant may  be  arrested  and  held  to  bail,  whenever  it 


56  OF    ARREST    AND    BAIL. 

appears  that  he  has  been  guilty  of  any  of  the  acts 
above  enumerated.  Thus,  where  a  person  in  mak- 
ing a  purchase  of  goods  on  credit,  or  in  obtaining 
the  loan  of  money,  is  guilty  of  a  fraudulent  repre- 
sentation of  facts,  upon  which  he  obtains  the  credit ; 
or  of  a  fraudulent  suppression  of  facts,  which  if 
known  to  the  seller  or  lender  would  have  prevented 
the  sale  or  loan ;  in  such  cases,  an  order  may  be 
obtained,  for  the  arrest  of  the  defendant.     Or 

5.  When  the  defendant  has  removed  or  disposed  of,  his  property, 
or  is  about  to  do  so,  with  intent  to  defraud  his  creditors  : 

The  "  act  to  abolish  imprisonment  for  debt  and 
punish  fraudulent  debtors"  authorized  a  warrant  to 
be  issued  for  the  arrest  of  a  defendant,  who  removed 
or  disposed  of  his  property,  or  was  about  to  do  so, 
with  intent  to  defraud  his  creditors ;  but  it  could 
not  heretofore  be  done  in  an  action.  Now,  in  an 
action  upon  a  contract,  or  in  any  other  action,  an 
order  may  be  obtained  for  the  arrest  of  a  defendant, 
in  those  cases  mentioned  in  the  last  subdivision. 

It  will  be  seen  that  the  right  to  arrest  the  defend- 
ant and  hold  him  to  bail,  has  been  extended  to  a 
variety  of  cases  in  which  formerly  it  could  not  be 
done.  From  the  specific  and  distinct  language  of 
the  Code  upon  this  subject,  the  practitioner  will  find 
little  difficulty  in  satisfying  himself,  whether  his 
case  is  one,  in  which  he  can  obtain  an  order  for  the 
arrest  of  the  defendant.  He  has  only  to  bring  it, 
within  one  of  the  class  of  actions  in  which  arrests 
are  allowed.  In  addition  to  the  cases  in  which  the 
defendant  can  be  held  (o  bail,  as  before  mentioned, 
the  defendant  may  also  be  arrested  in  all  the  cases 
provided  for  in  the  act  to  abolish  imprisonment  for 


OF    ARREST    AND    BAIL.  57 

debt  and  to  panish  fraudulent  debtors,  passed  April 
26,  1831,  and  in  the  several  acts  amending  the 
same.  Code,  §  178. 

A  female  cannot  be  arrested  in  any  action,  except 
for  a  wilful  injury  to  person,  character  or  property, 
Thus,  a  female  may  be  arrested  and  held  to  bail,  for 
a  wilful  slander  or  libel,  or  wilful  assault  and  battery, 
or  a  wilful  trespass  upon  real  or  peri^onal  property. 
But  unless  the  act  complained  of  is  iviJful,  she  can- 
not be  held  to  bail ;  and  it  is  not  sufficient  that  it 
was  accompanied  by  force,  but  it  must  appear  to 
have  been  wilfully  done. 

Obtaining  the  order  of  arrest.'] — A  defendant  cannot 
be  arrested  in  any  case  without  an  order.  This  must 
be  obtained  from  a  judge  of  the  court  in  which  the 
action  is  brought,  or  it  may  be  obtained  from  a 
county  judge,  {Code,  §  180);  the  latter,  however,  can 
only  grant  the  order  within  his  county.  Although 
it  would  seem  that  a  county  judge  of  one  county 
may  grant  an  order  for  the  arrest  of  a  defendant,  in 
another  county. 

Affidavit  to  obtain  the  order.'] — An  affidavit  must  be 
prepared  of  the  facts  of  the  case;  it  must  contain  a 
statement  of  a  sufficient  cause  of  action,  and  must 
be  stated  in  plain  and  intelligible  language,  that 
the  judge  maybe  able  to  determine,  that  a  sufficient 
cause  of  action  exists,  and  may  be  able  to  fix  the 
amount  of  the  bail. 

The  affidavit  need  not  be  entitled.   (Cb^c,  §  403.) 
In  addition  to  a  statement  of  a  sufficient  cause  of 
action,  the  affidavit  must  state  a  case  bringing  it 
wilhin  one  of  the  descriptions  of  actions,  in  which 
the  defendant  may  be  arrested.     It  is  not  enough 


58  OF    ARREST    AND    BAIL. 

that  it  be  generally  stated.  It  must  "  appear  to  the 
judge  "  that  it  is  a  case  authorising  the  arrest.  The 
facts  and  circumstances  mast  be  stated;  a  mere  belief 
not  being  sufficient,  {Martin  v.  Vandcrlip,  3  How.  Pr.. 
Rep.,  265 ;  Van  Valkenhurgh  v.  Recorder  of  Albany,  6 
Hill  Rep.,  429,)  and  a  supplementary  affidavit  is  not 
afterwards  allowed.  Code,  §  180. 

By  whom  to  he  sworn  to.} — The  plaintiff  in  the  action, 
or  any  other  person,  can  swear  to  the  affidavit;  he 
must,  however,  be  able  to  swear  positively,  to  the 
cause  of  action  and  to  the  facts  and  circumstances 
rendering  it  a  proper  case  for  the  order.  It  must  be 
sworn  to  before  an  officer  authorised  to  administer 
oaths  in  this  state — the  attorney,  or  his  partner,  or 
the  counsel,  if  authorised  to  administer  oaths,  may 
take  the  oath  to  the  affidavit. 

The  order,  when  made.] — The  order  may  be  made 
to  accompany  the  summons;  that  is,  after  the  sum- 
mons is  made  out,  and  beiore  it  is  served,  the  order 
can  be  made  and  then  served  with  the  summons, 
or  it  may  be  made  at  any  time  during  the  progress 
of  the  suit,  before  judgment.  Code,  §  183. 

If  none  of  the  causes  for  which  a  defendant  may 
be  arrested  exist  at  the  time  of  commencing  the 
action,  but  afterwards,  and  at  any  time  during  the 
progress  of  the  suit,  before  judgment,  the  deliendant 
docs  an  act,  which  before  the  commencement  of 
the  suit  would  have  entitled  the  plaintiff  to  an  order 
for  his  arrest,  the  plaintiff  may  apply  upon  affidavit 
of  the  facts  and  obtain  an  order  for  the  defendant's 
arrest. 

Contents  of  ordcrl] — The  order  must  contain  a  di- 
rection to  the  sheriff,  forthwith  to  arrest  the  defend- 


OF   ARREST    AND    BAIL.  59 

ant,  if  in  his  county,  and  hold  him  to  bail  in  a  sum 
to  be  specified  in  the  order,  and  to  return  the  order 
to  the  plaintiti^or  attorney,  by  whom  it  is  subscribed 
at  a  time  and  place  to  be  therein  stated.  The  time 
and  place  of  return  is  to  be  fixed  by  the  judge  who 
makes  the  order.  It  must  be  a  reasonable  time, 
after  the  order  is  given  to  the  sheriif,  to  enable  him, 
with  proper  diligence,  to  arrest  the  defendant.  The 
name  of  the  plaintiff,  if  he  sues  in  person,  or  of  his 
attorney,  must  be  subscribed  to  or  endorsed  upon 
the  order,  and  should  state  his  place  of  residence  or 
business.  Code,  §  183.  (For  the  form  of  the  order, 
see  Appendix.)  The  amount  of  the  bail  is  to  be  fixed 
by  the  judge  who  makes  the  order,  as  hereafter 
stated. 

The  undertaking.] — Before  the  order  of  arrest  will 
be  made  the  judge  will  require  a  written  under- 
taking on  the  part  of  the  plaintiff,  with  or  without 
sureties;  as  he  shall  determine,  to  the  effect,  that  if 
the  defendant  recover  judgment  in  the  action,  the 
plaintiff  will  pay  all  costs  that  may  be  awarded  to 
the  defendant,  and  all  damages  which  he  may  sus- 
tain by  reason  of  the  arrest,  not  exceeding  the  sum 
specified  in  the  undertaking.  Code,  §  182.  The 
amount  for  which  the  undertaking  is  given,  must 
not  be  less  than  one  hundred  dollars.  It  may  be  as 
much  more  as  the  judge  who  grants  the  order  of 
arrest  may  require. 

If  the  undertaking  be  executed  by  the  plaintiff 
without  sureties,  his  affidavit  must  be  annexed  that 
he  is  a  resident  and  householder  or  freeholder  with- 
in the  state,  and  worth  double  the  sum  specified  in 
the  undertaking  over  and  above  all  debts  and  lia- 
bilities. 


60  OF    ARREST    AND    BAIL. 

The  amount  of  the  bail,  is  fixed  by  the  judge  who 
grants  the  order  for  the  arrest,  and  is  incorporated 
in  it.  Tiie  amount  will  depend  upon  the  cause  of 
the  action.  In  suits  to  recover  fines  or  penalties  or 
money  received  or  property  taken,  or  for  fraudulent- 
ly contracting  the  debt,  the  amount  of  bail  will 
generally  be  double  the  sum  claimed  or  double  the 
value  of  the  property  taken,  and  in  actions  for  in- 
juries to  the  person  or  character  it  will  be  such  as 
the  judge  shall  fix  upon,  in  view  of  the  nature  and 
extent  of  the  injury  complained  of  (For  the  form 
of  the  undertaking,  see  Appendix.) 

A  sound  discretion  is  to  be  exercised  by  the  judge 
in  fixing  the  amount  of  bail  in  actions  sounding  in 
damages  only.  And  care  will  be  taken  that  the 
amount  is  not  excessive,  or  beyond  the  power  of 
the  defendant  to  obtain.  The  aggravation  of  the 
act  complained  of,  will,  however,  generally  govern 
the  officer;  and  the  amount  of  bail  will  be  regulated 
by  the  circumstances  of  each  case.  Therefore  no 
particular  rule  can  be  laid  down. 

Arresting  the  Defendant.'] — The  order  having  been 
obtained  from  the  judge,  it  must  be  annexed  to  the 
original  affidavit  upon  which  it  is  founded.  The 
proper  way  is,  for  the  judge  to  endorse  the  order 
upon  the  affidavit.  The  order  and  affidavit  must 
then  be  given  to  the  sheriff  of  the  county  where  the 
defendant  is.  The  sheriff  must  forthwith  arrest  the 
defendant,  and  keep  him  in  custody  until  discharged 
by  law.  The  sheriff  to  whom  the  order  of  arrest  is 
delivered,  is  bound  to  exercise  diligence  in  making 
the  arrest,  and   if  he  could   have  done  so,  and  the 


OF    ARREST    AND    BAIL.  61 

defendant  escape,  the  sheriff  would  be  liable  to  the 
plaintifl  in  an  action. 

It  seems  the  plaintiff  may  limit  the  time  within 
which  the  order  must  be  executed.  {Code,  §  192.) 
This  is  done,  by  an  endorsen  ent  upon  the  order,  re- 
quiring the  sheriff  to  arrest  the  defendant  and  make 
return  of  the  execution  of  the  order  to  the  plaintiff 
or  his  attorney,  within  a  specified  number  of  days, 
and  the  order  must  be  executed  accordingly.  (For 
form  of  endorsement,  see  Appendix.)  Code,  §  181, 
185.  At  the  time  of  making  the  arrest,  the  sheriff 
must  deliver  to  the  defendant  a  cnpij  of  the  order  of 
arrest  and  of  the  affidavit. 

The  attorney  who  procures  the  order  should  fur- 
nish the  sheriff  with  a  copy  of  the  order  and  affida- 
vit to  be  served  on  the  defendant. 

The  defendant  may  be  discharged  from  the  arrest 
and  from  the  custody  of  the  sheriff,  in  either  of  two 
ways.     Code,  §  186. 

Giving  Bail.] — The  bail  to  be  given  by  a  defend- 
ant, is  a  written  undertaking  [see  Appendix,)  exe- 
cuted by  two  or  more  sufficient  bail.  It  must 
state  their  places  of  residence  and  occupations,  and 
must  be  to  the  effect,  that  the  defendant  will  at  all 
times  render  himself  amenable  to  the  process  of  the 
court,  during  the  pendency  of  the  action,  and  to 
such  as  may  be  issued  to  enforce  the  judgment 
therein.  (Code,  §  187.)  This  undertaking  will  an- 
swer in  every  case  of  an  arrest  of  the  defendant, 
except  when  he  is  arrested  in  an  action  to  recover 
the  possession  of  personal  property  unjustly  de- 
tained, where  the  property  has  been  c  ncealed  or 
removed  so  that  it  cannot  be  found  or  taken  by  the 


62  OF    ARREST    AND    BAIL. 

sheriff.  In  which  case  the  undertaking  must  be 
given  to  tlie  sheriff.  It  must  be  executed  by  two 
or  more  sufficient  sureties,  and  must  be  to  tlie  ef- 
fect that  they  are  bound  in  double  the  value  of  the 
property,  as  stated  in  the  affidavit  of  the  plaintiff, 
for  the  delivery  thereof  to  the  plaintiff,  if  such  de- 
livery be  adjudged,  and  for  the  payment  to  him  of 
such  sum  as  may,  for  any  cause,  be  recovered 
against  the  defendant. 

Qualifications  of  Bail.] — Each  of  the  bail  must  be  a 
resident  and  householder,  or  freeholder,  within  this 
state.  (Code,  ^  194.)  They  must  each  be  worth  the 
sum  specified  ia  the  order  of  arrest,  exclusive  of  the 
property  exempt  from  execution,  but  the  judge  or 
justice  of  the  peace  on  justification  may  allow  more 
than  two  bail  to  justify  severally  in  amounts  less 
than  that  expressed  in  the  order,  if  the  whole  justi- 
fication be  equivalent  to  that  of  two  sufficient  bail. 
{Code,  §  195.) 

The  qualification  and  nature  of  the  bail  being 
similar  to  special  bail  in  actions  before  the  Code, 
the  decisions  of  the  courts  upon  the  subject  may  be 
regarded  as  applicable. 

It  has  been  decided  that  the  following  persons 
are  disqualified  from  becoming  bail,  viz:  officers  of 
the  different  courts  ;  as  attorneys,  (15  John.  R  ,  535; 
1  IVmd.  II.,  35;  Doiigl.,  467,)  attorneys  partners,  (1 
D.  §•  R.,  9,)  attorneys  clerks,  (2  East.,  182,)  sheriffs 
and  their  officers,  (20  John.  R.,  129,)  turnkeys  and 
jailors.  (2  B.  §•  P.,  150.) 

Exception  to  bail.] — AVithin  the  time  limited  in  the 
order  for  the  arrest  of  the  defendant,  (if  there  be  an 
endorsement  upon  the  order  limiting  the  time  for 


OF    ARREST    AND    BAIL.  63 

making  the  arrest,  or  if  not,  then  within  a  reason- 
able time,  after  the  arrest  is  made,)  the  sheriff  must 
deliver  to  the  plaintiff  or  his  attorney,  the  order  of 
arre&t  and  affidavit,  with  his  return  endorsed  there- 
on; either  that  he  has  arrested  the  defendant,  and 
has  him  in  custody  or  has  taken  from  him  the  writ- 
ten undertaking  required  by  law,  or  that  he  has  not 
found  the  defendant  in  his  county.  Code,  §  192. 

If  the  defendant  has  been  arrested  and  given  the 
undertaking,  the  sheriff  must,  at  the  same  time  de- 
liver to  the  plaintiff  or  his  attorney  a  certified  copy 
of  the  undertaking  of  the  bail.  Ibid. 

Within  ten  days,  after  receiving  the  order  and 
copy  undertaking  from  the  sheriff,  the  plaintiff,  if 
he  is  not  satisfied  with  the  sufficiency  of  the  bail 
given  by  the  defendant,  must  serve  upon  the  sheriff 
a  written  notice,  that  he  does  not  accept  the  bail. 
Code,  §  192. 

If  he  omit  to  do  so,  he  will  be  deemed  to  have 
accepted  the  bail  and  the  sheriff  will  be  exonerated 
from  liability.  Code,  §  192.  (For  the  form  of  the 
notice,  see  Appendix.) 

-Justifying  bail.] — On  receipt  of  the  notice  of  ex- 
ception, the  sheriff  or  the  defendant  must  see  that 
the  bail  justify.  Ordinarily  the  defendant  will  at- 
tend to  having  the  bail  justify.  Nevertheless,  it  is 
the  duty  of  the  sheriff  to  see  that  the  defendant  do 
so.  The  sheriff  is  in  the  first  instance  liable  to  the 
plaintiff,  if  the  bail  omit  to  justify,  and  hence,  if  he 
would  exonerate  himself  from  liability,  he  must  see 
that  the  bail  justify  in  a  proper  manner,  and  not 
trust  entirely  to  the  defendant's  having  it  done. 
For  the  purpose  of  justifying,  the  sheriff  or  defend- 


64  OF   ARREST   AND    BAIL. 

ant  must,  within  ten  days  after  receipt  of  the  notice 
of  exception,  give  to  the  plaintiff  or  his  attorney, 
notice  in  writing  of  the  jastificalion  of  the  bail, 
before  a  judge  of  the  court  in  which  the  action  is 
pending,  or  before  a  county  judge  or  a  justice  of  the 
peace,  specifying  therein  the  time  and  place  when 
and  where  the  bail  will  justify,  which  must  not  be 
less  than  five  nor  more  than  ten  days  after  the  service 
of  the  notice.  The  authority  given  for  bail  to  justify 
before  a  county  judge  or  a  justice  of  the  peace  is 
general.  Code,  §  193.  Yet  it  would  not  be  proper  for 
a  justice  of  the  peace  or  even  a  county  judge  re- 
siding in  a  county  other  than  that  where  the  arrest 
was  made  or  where  the  bail  reside,  to  exercise  the 
power,  except  in  cases  of  necessity  or  where  some 
good  reason  is  given.  And  it  is  accordingly  pro- 
vided by  Rule  89  of  the  Supreme  Court,  that  the 
justification  of  bail  must  be  within  the  county 
where  the  arrest  was  made  or  where  the  bail  reside. 
(For  form  of  notice,  see  Appendix.) 

Other  Bail] — Instead  of  causing  the  bail  already 
put  in,  to  justify,  the  sheriff  or  defendant,  may 
within  the  same  time  (i.  e.  ten  days  after  notice  of 
the  exception,)  give  a  written  notice  to  the  plaintiff 
or  his  attorneys,  ilmt  other  bail,  (whose  places  of  resi- 
dence and  occupation  must  be  stated  in  the  notice,) 
will  in  like  manner  justify  before  the  judge  or  justice. 
This  notice  must  state  the  time  and  place,  when 
and  where,  and  the  name  of  the  officer  before  whom 
the  new  bail  will  justify,  and  it  must  not  be  less  than 
live,  nor  more  than  ten  days,  from  the  receipt  of  the 
exception  by  the  sherifl^.  (For  form  of  notice,  see 
Appendix.) 


OF    ARREST    AND    BAIL.  65 

In  case  neiu  bail  is  put  in,  a  new  undertaking  must 
be  executed,  in  the  form  and  to  the  effect  prescribed 
by  law  for  the  first  undertaking.  And  the  new  bail 
must  justify  in  the  same  manner  as  is  required  in 
the  case  of  the  first  bail.  Code,  §  193. 

Manner  of  justifying.'] — At  the  time  and  place  men- 
tioned in  the  notice,  each  of  the  bail  must  attend 
before  the  judge  or  justice  of  the  peace  mentioned 
in  the  notice.  The  officer  must  administer  to  the 
bail  an  oath  that  he  will  "true  answers  make  to  all 
questions  that  may  be  put  to  him  touching  his  prop- 
erty and  sufficiency  as  bail  in  the  action."  The 
plaintiff  or  his  attorney  may  then  examine  the  bail, 
in  such  a  manner  as  the  judge  or  justice  of  the 
peace  may  think  proper,  touching  his  sufficiency  as 
bail.  Considerable  latitude  should  be  allowed  in 
the  examination  of  the  bail,  the  object  being  to  as- 
certain their  sufficiency.  Thus  the  plaintiff  should 
be  permitted  to  enquire  into  the  amount  and  situa- 
tion of  the  property  of  the  bail,  and  the  extent  and 
nature  of  his  indebtedness.  An  1  where  the  property 
of  the  bail  consists  of  personal  estate,  or  property 
easily  convertible  into  personal  estate,  the  plaintiff 
should  be  allowed  to  examine  the  bail  as  to  the  per- 
manency of  his  residence  in  this  state,  and  whether 
he  has  any  intention  of  removing  elsewhere.  And 
generally,  a  full  and  particular  examination  should 
be  allowed,  that  the  officer  may  be  satisfied  of  the 
sufficiency  of  the  bail,  not  only  at  the  time  of  the 
justification,  but  during  the  pendency  of  the  action, 
and  until  after  judgment  is  obtained:  the  object  of 
bail  being  to  secure  \\\e  person  of  the  defendant  to 
answer  such  process  of  the  court  as  may  be  issued 


66  OF    ARREST    AND    BAIL. 

to  enforce  the  judgment  that  may  be  rendered  in 
the  action.  If  the  plaintiff  require  it,  the  examina- 
tion of  the  bail  must  be  reduced  to  writing  by  the 
officer,  and  must  be  subscribed  by  the  bail.  Code, 
§  195. 

If  the  officer  find  the  bail  sufficient,  he  must  an- 
nex the  examination  of  the  bail  to  the  undertaking, 
and  endorse  upon  the  undertaking  his  allowance  of 
the  sufficiency  of  the  bail. 

Filing  undertaking.] — After  the  bail  have  justified, 
as  before  stated,  the  undertaking,  together  with  the 
examination  of  the  bail  and  the  endorsement  of 
allowance,  must  be  filed  with  the  clerk  of  the  county, 
mentioned  in  the  complaint  for  the  trial  of  the  ac- 
tion. 

Liability  of  the  sheriff.'] — If  the  bail  justify,  and  the 
undertaking  is  filed  in  the  manner  we  have  stated 
the  sheriff  is  then  exonerated  from  liability  and  the 
plaintiff  must  look  to  the  bail.  But  if,  after  being 
arrested,  the  defendant  escape,  or  be  rescued,  or  bail 
be  not  given  or  bail  do  not  justify,  or  a  deposite  is 
not  made  in  lieu  of  bail,  the  sheriff  is  himself  liable, 
as  bail,  {^Cude,  §  281)  and  the  plaintiff  after  he  has 
recovered  judgment  in  the  action,  and  issued  and 
had  returned  an  execution  unsatisfied  in  whole  or 
in  part,  may  bring  an  action  against  the  sheriff,  in 
the  same  manner  that  he  might  have  done  against 
the  bail,  had  any  been  put  in. 

The  sheriff,  however,  may  discharge  himself  from 
such  liability,  by  the  giving  and  justification  of  bail 
in  the  manner  that  is  required  by  the  defendant  in 
the  first  instance.  In  order  to  do  this,  the  sheriff 
must  cause  an  undertaking  to  be  executed  by  two 
or  more  persons,  in  the  same  form  and  to  the  same 


OF    ARREST    AND    BAIL.  67 

effect,  as  in  other  cases  of  bail,  who  must  be  resi- 
dents and  householders  or  freeholders,  within  the 
State,  and  each  worth  the  arnount  specified  in  the 
order  of  arrest,  exclusive  of  property  exempt  from 
execution.  A  copy  of  the  undertaking  must  be 
served  upon  the  plaintiff's  attorney,  with  a  written 
notice  specifying  the  time,  not  less  than  five  nor 
more  than  ten  days  thereafter,  and  the  place  Avhen 
and  where,  and  the  name  of  the  officer  (judge  of 
the  court,  county  judge  or  justice  of  the  peace,)  be- 
fore whom  the  bail  will  justify.  Such  bail  must 
attend  and  justify  in  like  manner  as  other  bail. 
Code,  §  201. 

If  a  judgment  be  recovered  against  the  sheriff, 
upon  his  liability  as  bail,  and  an  execution  thereon 
be  returned  unsatisfied  in  whole  or  in  part,  the  same 
proceedings  may  be  had  on  his  official  bond,  to  col- 
lect the  deficiency  as  in  other  cases  of  delinquency. 
Code,  §  202. 

In  case  the  bail  taken  upon  the  arrest  do  not  jus- 
tify, they  are  not  thereby  discharged  from  liability 
to  the  sheriff  He  may  bring  an  action  against  such 
bail,  for  all  damages  which  he  may  sustain  by  rea- 
son of  such  omission. 

Liability  of  bail.] — ^The  undertaking  of  the  bail, 
being  that  the  defendant  shall  at  all  times,  render 
himself  amenable  to  the  process  of  the  court,  during 
the  pendency  of  the  action,  and  to  such  as  may  be 
issued  to  enforce  the  judgment  therein,  or,  in  actions 
to  recover  the  possession  of  personal  property,  for 
the  delivery  thereof  to  the  plaintiff,  in  case  such 
delivery  be  adjudged,  and  for  the  payment  to  him, 
of  such  sum  as  may,  from  any  cause,  be  recovered 
against  the  defendant,   the  liability  of  the  bail  at- 


68  OF    ARREST    AND    BAIL. 

taches  upon  a  failure  to  comply  with  the  under- 
taking. Thus,  upon  the  return  of  an  execution  un- 
satisfied, or  upon  failure  of  the  sheriff  to  arrest  the 
defendant  upon  an  execution  against  his  person,  or 
upon  the  defendant's  failing  to  comply  with  any 
other  process  of  the  court,  issued  to  enforce  the 
judgment,  the  bail  become  liable  to  the  plaintiff  in 
the  action.  Or  in  an  action  to  recover  the  posses- 
sion of  personal  propert)'-,  if  a  return  thereof  be  ad- 
judged to  the  plaintiff,  and  the  property  be  not  re- 
turned, the  bail  become  liable. 

The  bail,  however,  can  only  be  proceeded  against 
by  action.  Code,  §  190. 

Surrender  of  hail.'] — At  any  time  before  the  liability 
of  the  bail  attaches,  i.  e.,  before  a  failure  to  comply 
with  their  undertaking,  they  may  surrender  the  de- 
fendant to  the  sheriff  of  the  county  where  he  was 
arrested,  and  thereby  exonerate  themselves  from  all 
liability.  And  the  defendant  may  in  like  manner 
surrender  hiuiself,  and  thus  discharge  the  bail  from 
liability. 

Jn  an  action,  however,  to  recover  the  possession 
of  personal  property,  unjustly  detained,  when  the 
property  has  been  concealed  or  removed,  so  that  it 
cannot  be  found  or  taken  by  the  sheriff,  if  the  defen- 
dant has  been  arrested  and  put  in  jail,  the  bail  can- 
not surrender  the  defendant,  nor  can  the  defendant 
surrender  himself,  and  thereby  discharge  the  bail 
from  liability;  the  bail  in  such  a  case  must  stand. 
{Cole,  §  188.) 

In  order  to  procure  a  surrender  of  the  defendant 
in  exoneration  of  the  bail,  a  copy  of  the  undertaking 
must  be  obtained  from  the  clerk  of  the  county  where 
it  is  filed,  who  must  certify  it   to  be  a   copy,  and 


ARREST    AND    BAIL.  69 

Avliich  must  be  delivered  to  the  sherifF,  who  must 
take  and  detain  the  defendant  in  his  custody  thereon, 
in  the  same  manner  as  upon  an  order  of  arrest,  and 
must  by  a  certificate  in  writing  acknowledge  the  sur- 
render of  the  defendant  to  his  custody.  {Code^  188, 
sub.  1.)     For  the  form  of  the  certificate  see  Appendix. 

A  copy  of  the  undertaking  with  the  sheriff's  cer- 
tificate of  surrender,  must  then  be  presented  to  a 
judge  of  the  court  or  to  a  county  judge,  who  will  or- 
der a  notice  of  at  least  eight  days  to  be  given  to  the 
plaintiff,  or  his  attorney,  of  the  application  to  exon- 
erate the  bail.  (For  form  of  certificate  see  Appendix.) 
A  copy  of  the  sheriff 's  certificate  of  surrender  must  be 
served  with  the  notice.  If  the  judge  decide  that  it 
is  a  proper  case  for  the  exoneration  of  the  bail,  he 
will  make  an  order  that  the  bail  be  exonerated.  (For  form 
of  order,  see  Appendix.) 

The  order  and  the  papers  used  upon  the  applica- 
tion, must  be  filed  with  the  clerk  of  the  county, 
where  the  undertaking  is  filed,  and  the  bail  are  thus 
exonerated  and  discharged  from  liability. 

Deposite  of  monei/.^ — The  defendant  at  the  time  of 
his  arrest,  but  not  afterwards,  instead  ol  giving  bail, 
may  deposit  with  the  sheriff,  the  amount  mentioned 
in  the  order.  Upon  this  being  done,  the  sheriff  must 
give  to  the  defendant  a  certificate  of  the  deposit  and 
discharge  him  from  custody.  {Code§  87.  Forform 
of  certificate  see  Appmdix.) 

AVithin  four  days  after  the  deposite,  the  sherift^ 
must  pay  the  money  to  the  clerk  of  the  county  de- 
signated in  the  complaint  for  the  trial  of  the  action, 
and  take  from  him  two  certificates  of  such  payment, 
one  of  Avhich  he  must  forthwith  delivv^r  (o  the 
plaintiff  in  the  action,  and  the  other  to  the  defend- 


70  OF    ARREST    AND    BAIL. 

ant.  If  the  sheriff  neglect  to  pay  the  money  to  the 
clerk  within  the  time  required,  the  same  proceed- 
ings may  be  had  upon  the  official  bond  of  the  sheriff 
to  collect  the  sum  deposited,  as  in  other  cases  of  de- 
linquency. Code  §  198.  (For  form  of  certifijate,  see 
Appendix ) 

The  money  thus  paid  to  the  clerk,  must  remain 
in  his  custody  until  there  is  an  order  or  judgment 
for  its  payment  to  the  plaintiff  in  the  action,  or  un- 
til it  be  ordered  by  a  judge  to  be  refunded  to  the  de- 
fendant. Upon  a  judgment  or  order  being  obtained 
by  the  plaintiff  in  the  action  for  the  payment  of 
money,  an  order  must  be  obtained  from  the  court  in 
which  the  action  was  pending,  which  will  be  grant- 
ed of  course,  directing  the  clerk,  to  whom  the  money 
was  paid,  to  apply  the  same  in  satisfaction  of  the 
order  or  judgment,  and  the  clerk  will  apply  the 
money  accordingly.  If  after  satisfying  the  judg- 
ment, any  surplus  remains  in  the  hands  of  the  clerk, 
he  must  refund  the  same  to  the  defendant.  If  at  the 
time  of  the  arrest,  the  defendant  make  a  deposit  of 
money  in  lieu  of  bail,  he  may,  notwithstanding,  at 
any  time  before  judgment  in  the  action,  put  in  bail 
and  have  the  money  refunded  to  him.  The  bail 
must  be  given  and  must  justify  in  the  same  manner 
as  upon  the  arrest.  Upon  this  being  done,  the  judge 
before  whom  the  justification  of  the  bail  is  had,  will 
in  the  order  of  allowance  of  the  sufficiency  of  bail, 
direct  that  the  money  deposited  be  refunded  by  the 
sheriff  or  the  clerk,  to  the  defendant,  and  it  will  be 
refunded  accordingly.  Code  §  199. 

Vacating  order  of  arrest.'] — If  the  defendant  has 
been  arrested  in  an  action,  in  which  he  is  not  sub- 
ject to  arrest,  or  if  the  order  to  hold  to  bail  is  in  too 


OF   ARREST    AND   BAIL.  7l 

large  an  amount,  he  may,  at  any  time  before  the 
bail  have  actually  justified,  move  to  vacate  the  order 
of  arrest,  or  reduce  or  mitigate  the  amount  of  the 
bail.  This  is  a  special  motion,  and  may  be  founded 
upon  the  affidavit  of  ihe  defendant,  a  copy  of  which 
with  eight  days  notice  of  the  time  and  place  of  ma- 
king the  motion,  must  be  served  upon  the  plaintiff'  s 
attorney,  and  is  conducted  like  other  special  motions, 
as  to  which  see  post.  (For  form  of  notice,  see  Ap- 
pendix.) 

The  affidavit  upon  which  the  motion  is  to  be 
founded,  must  state  the  facts,  entitling  the  defend- 
ant to  an  order  vacating  the  order  of  arrest,  or  to  a 
mitigation  of  the  amount  of  the  bail.  The  motion 
may  be  made  without  an  affidavit  of  the  defendant, 
if  the  affidavit  upon  which  the  order  of  arrest  was 
granted,  was  insufficient;  in  which  case  the  plain- 
tiff cannot  supply  any  omissions  or  defects  by  a  sup- 
plemental affidavit.  If,  however,  the  defendant 
moves  to  vacate  or  modify  the  order,  upon  'dw  affida- 
vit, (the  plaintiff's  affidavit  having  made  out  a  suffi- 
cient case  for  the  arrest  in  the  first  instance,)  the 
plaintiff  is  then  entitled  to  resist  the  motion  upon 
new  affidavits,  either  of  his  own,  or  of  any  other  per- 
son, who  may  be  able  to  swear  to  the  facts  necessary 
to  sustain  the  order.  But  it  is  only  in  the  event 
of  the  defendants  moving  on  affidavit,  that  the 
plaintiff  will  be  allowed  to  introduce  any  other  than 
the  one  upon  which  the  order  of  arrest  was  ob- 
tained. 

The  defendant,  therefore,  in  moving  upon  affida- 
vits to  vacate  or  modify  the  order  of  arrest,  incurs 
the  hazzard  of  being  out  sworn  by  the  plaintiff. 


72  CLAIM  AND  DELIVERY  OF    PERSONAL  PROPERTY. 


SECTION  III. 
Of  the  Claim  and  Delivery  of  Personal  Property 

The  action  of  replevin,  as  it  existed  before  the 
Code,  was  the  only  remedy  for  the  recovery  of  per- 
sonal property.  In  other  actions,  the  value  only  was 
recovered ;  the  thing  itself  could  not  be  obtained. 

Somewhat  in  analogy  to  replevin,  provision  is 
made  in  the  Code  for  the  recovery  of  the  possession 
of  personal  property. 

At  the  time  of  issuing  the  summons,  or  at  any 
time  before  answer,  the  plaintiff  in  an  action  to  re- 
cover the  possession  of  personal  property,  may  claim 
the  immediate  delivery  of  the  property  to  him. 
Code,  §  206. 

The  summons  and  complaint  must  be  prepared 
in  the  same  manner  as  in  other  actions,  and  must 
state  a  sufficient  cause  of  action,  to  entitle  the  plain- 
tiff to  a  delivery  of  the  property;  and  they  must  be 
served  on  the  defendant,  either  before  or  at  the  time 
the  plaintiff  claims  of  the  sheriff  the  delivery  of  the 
property. 

Affidavit  to  be  7nade,] — In  order  to  claim  a  delivery 
of  the  property  to  the  plaintiff,  an  affidavit  must  be 
made.  The  sheriff  is  not  authorized  to  seize  per- 
sonal property  and  deliver  it  to  the  plaintiff,  upon 
the  complaint  alone,  notwithstanding  the  complaint 
is  verified:  an  affidavit  must  be  made.  The  affi- 
davit may  be  made  by  the  plaintiff,  or  by  any  one 
in  his  behalf,  who  must,  however,  swear  positively 


CLAIM  AND   DELIVERY  OF   PERSONAL  PROPERTY.  73 

to  the  facts  therein  contained,  and  not  to  informa- 
tion and  belief  merely.   1  Hill  R.,  204. 

Affidavit  lohat  to  contain.^ — The  aflidavit  must  state, 
that  the  plaintiff  is  the  owner  of  the  property  claim- 
ed, and  must  particularly  describe  it;  or,  that  he  is 
lawfully  entitled  to  the  possession  thereof,  by  virtue 
of  a  special  property  theiein,  and  must  particularly 
state  the  facts  conferring  the  special  property  in  the 
plaintiff.    What  constitutes  the  title  to  the  property, 
cr   in   other  words,  how   the  plaintiff  becaojc  the 
owner,  need  not  be  stated  in  the  affidavit.  It  is  suffi- 
cient, if  he  swear  that  he  is  the  owner  of  the  pro- 
perty, the  delivery  of  which  is  sought.     It  is  neces- 
sary to  describe  the  property  with  sufficient  particu- 
larity  to  enable   the  sheriff  to  identify  the  same. 
Thus,  one  brown  horse,  or  one  mahogany  bureau, 
and  the  like.     When  the  plaintiff  claims  the  deli- 
very of  the  property,  by  virtue  of  a  special  property 
therein,  Xhefads  constituting  the  special  property, 
must  be  stated  in  the  affidavit.    There  are  a  variety 
of  facts  which  confer  a  special  property  in  a  chattel, 
and  which  authorize  a  plaintiff  to  obtain  its  delive- 
ry to  him.     Thus,  a  bailee,  pledgee,  or  mortgagee, 
from  whose  possession  the  chattel  has  been  taken, 
may  claim   the   delivery.     So,   a    sheriff^  who  has 
levied  upon  personal  property,  has  such  a  special 
property  in  it,  that  he  may  obtain  its  delivery  to 
him,  in  an  action,  against  an/  person,  even  the  de- 
fendant in  the  execution.     In  short,  any  interest  in 
a  chattel,  which  carries  with  it  the  right  to  its  pos- 
session, is  sufficient  to  enable  a  person  to  claim  its 
delivery,  as  against  a  wrong  doer. 

2.  The  affidavit  must  state  that  the  property  is 
wrongfully  detained  by  the  defendant.     In  respect 


74        CLAIM    AND    DELIVERY    OF    PERSONAL    PROPERTY. 

to  the  wrongful  detention  of  the  property  by  the  de- 
fendant, it  is  sufficient  to  state  in  the  affidavit  that 
"it  is  wrongfully  detained,"  and  it  is  not  necessary 
to  specify  in  what  it  consists.     That  is  to  be  proved 
upon  the  trial.     As  to  what  constitutes  a  wrongful 
detention,  it  will  be  found  generally,  that  the  person 
who  has  the   possession,    without  the  right  to  the 
possession,  is  guilty  of  a   wrongful    detention,  as 
against  the  person,  who  has  the  right.     Thus,  a  bai- 
lor of  goods  may  be  said  wrongfully  to  detain  them 
from  the  bailee,  who  has  the  right  to  the  possession; 
so,   with   a  pledgor  or    mortgai^or,   as  against   the 
pledgee  or  mortgagee.     So,  where  a  fraud  is  com- 
mitted in  the  purchase  of  goods,  no  title  passes  to 
the  purchaser,  and  the  vendor  may  claim  the  deliv- 
ery, and  allege  that  they  are  wrongfully  detained. 
23  Wend.  Rep.  372,  3  Hill  Rep,  348.    So,  if  an  o  i  cer 
having  an  execution  against  A.,  levy  upon  goods  of 
B.,  in  A.'s  possession,  it  would  be  a  wrongful  taking 
and  detention.     15  Wend.  Rep.  631.    In  short,  an  ac- 
tion to  recover  the  possession  of  personal  property, 
lies  in  all  cases,  where  formally,  trespass  de  bonis  as- 
portaiis,  could  be  maintained.     1  Wend.  Rep.  109.    3, 
Hill,  576. 

3.  The  affidavit  must  show  the  alleged  cause  of 
the  detention  of  the  property,  according  to  the  best 
knowledge,  information  or  belief  of  the  plaintiff. 
It  was  not  formerly  necessary  to  state,  in  the  affi- 
davit, the  alleged  cause  of  detention.  This,  how- 
ever, is  now  required,  and  the  plaintiff  must  set 
forth  in  his  affidavit,  the  cause  or  pretence  for  the 
detention.  Thus,  that  the  defendant  claims  to  be 
the  owner  of  the  property,  or  to  have  a  special  in- 


CLAIM    AND    DELIVERY    OF    PERSOX.IL    PROPERTY.        75 

terest  therein,  entitling  liim  to  the  possession  as  a 
pledgee,  bailee,  mortgagee,  or  that  he  is  an  innkeep- 
er, and  claims  to  hold  it  by  virtue  of  his  lien  there- 
on and  the  like.  The  cause  of  the  detention  may 
be  stated  upon  the  knowledge  of  the  plaintiff,  or 
according  to  his  best  information  and  belief 

4.  The  affidavit  must  state  that  the  property  has 
not  been  taken  for  any  tax,  assessment  or  fine,  pur- 
suant to  a  statute ;  or  seized  under  an  execution  or 
attachment  against  the  property  of  the  plaintiff;  or 
if  so  seized,  that  it  is,  by  statute  exempt  from  such 
seizure.  An  action  for  the  delivery  of  personal  pro- 
perty cannot  be  maintained,  by  the  defendant  in  an 
execution  except  to  recover  exempt  property,  even 
though  the  execution  was  improperly  issued.  So, 
if  a  warrant  for  the  collection  of  a  tax,  assessment 
or  fine,  is  levied  upon  personal  property,  the  action 
cannot  be  maintained  by  the  person  against  whom 
the  tax,  assessment  or  fine  is  levied,  even  though 
the  warrant  was  irregular.  7,  Wend.  Rep.  478.  And 
it  must  appear,  affirmatively,  in  the  affidavit,  that  the 
property  has  not  been  levied  upon  under  an  execu- 
tion, or  seized  under  an  attachment,  except  the 
property  be  exempt  from  levy  and  sale  or  seizure, 
and  that  it  has  not  been  levied  upon  under  a  war- 
rant for  the  collection  of  a  tax,  assessment  or  fine, 
pursuant  to  statute. 

5.  The  affidavit  mu.^t  also  state  the  actual  value 
of  the  property. 

It  is  necessary  that  the  actual  value  of  the  pro- 
perty should  be  stated  in  the  affidavit.  The  object 
of  this  ib  to  determine  the  amount  of  the  security 
which  the  plaintiff  must  give  before  he  can  obtain 


76       CLAIM    AND    DELIVERY    OF    PERSONAL    PROPERTY. 

a  delivery  of  the  property.  The  amount  thus  sta- 
ted in  the  affidavit  may  control  the  amount  of  the 
recovery,  for  should  the  defendant  require  a  return 
of  tiie  property  to  him,  {as  post  p.)  the  value  of  the 
property  as  sworn  to  by  the  plaintiff,  would  gene- 
rally be  the  amount  he  would  be  entitled  to  recov- 
er, in  case  he  recovered  at  all. 

If  the  affidavit  be  defective,  the  court  will  allow 
it  to  be  amended.  1  Hill  R.,  204. 

The  notice.] — The  affidavit  being  prepared,  the 
plaintiff's  attorney  must  endorse  upon  it,  a  notice 
requiring  the  sheriff  of  the  county,  where  the  pro- 
perty is,  to  take  the  same  from  the  defendant  and 
deliver  it  to  the  plaintiff.  (For  form  of  notice,  see 
Appendix.)  Code,  §  208. 

The  undertaking.] — Upon  delivering  the  affidavit 
and  notice  to  the  sherilT,  a  written  undertaking 
must  be  drawn  up  and  executed  by  one  or  more 
sufficient  sureties,  and  approved  of  by  the  sheriff, 
and  delivered  to  him.  The  approval  of  the  sheriff 
must  be  endorsed  upon  the  undertaking  and  sub- 
scribed by  the  sheriff.  Burns  v.  Robins,  1  Code  Rep'r, 
62.  It  need  not  be  executed  by  the  plaintiff.  It 
must  be  to  the  effect  that  the  sureties  are  bound,  in 
double  the  value  of  the  property,  as  stated  in  the 
affidavit,  for  the  prosecution  of  the  action,  for  the  re- 
turn of  the  property  to  the  defendant,  if  return  thereof 
be  adJLigded,  and  for  the  payment  to  him  of  such 
sum  as  may,  for  any  cause,  be  recovered  against 
the  plaintiff".  Code,  §  209. 

The  undertaking,  after  the  justification  of  the 
sureties,  must  be  delivered  to  the  defendant.  Code, 
§  423.     (For  form  of  undertaking,  see  Appendix.) 


CLAIM    AND    DELIVERY    OF   PERSONAL    PROPERTY.        77 

Taking  the  property.'] — The  affidavit,  notice  and 
undertaking  is  tlien  delivered  to  the  sheriff,  with  a 
copy  of  each  to  be  served  on  the  defendant.  The 
sheriff  must  fortliwith  take  the  property  describ- 
ed in  the  affidavit,  if  it  be  in  the  possession  of  the 
defendant  or  his  agent,  and  retain  it  in  his  custody. 
If  the  property  be  concealed  in  a  building  or  en- 
closure, the  sheriff  may  publicly  demand  its  delivery. 
If  it  be  not  delivered,  he  may  cause  the  building  or 
enclosure  to  be  broken  open,  and  take  the  property 
into  his  possession;  and  if  necessary,  he  may  call 
to  his  aid  the  power  of  his  county.  The  sheriff, 
having  taken  the  property,  must,  without  delay, 
serve  on  the  defendant  a  copy  of  the  affidavit,  no- 
tice and  undertaking,  by  delivering  the  same  to  him 
personally,  if  he  can  be  found,  or  to  his  agen',  from 
whose  possession  the  property  was  taken;  if  neither 
the  defendant  or  the  agent  can  be  found,  tiien  by 
leaving  them  at  the  usual  place  of  abode  of  either, 
with  some  person  of  suitable  age  and  discretion. 
{Code,  §  209.)  When  the  sheriff  has  taken  the  pro- 
perty into  his  custody,  he  must  keep  it  in  a  secure 
place,  and  deliver  it  to  the  party  entitled  thereto. 
His  fees  and  the  necessary  expenses  for  keeping  the 
property,  must,  however,  first  be  paid,  by  such  party. 
Code,  §215. 

Defendant  requinng  return  of  property.] — If  the  de- 
fendant desire  to  retain  the  possession  of  the  pro- 
perty, he  may  at  any  time  before  it  is  delivered  by 
the  sheriff  to  the  plaintift^,  provided  he  has  not  ex- 
cepted to  the  sureties  of  the  plaintiff,  require  it  to  be 
returned  to  him,  for  which  purpose  he  must  give 
the  sheriff  a  written  undertaking,  executed  by  two  or 


78   CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY. 

more  sureties,  to  the  effect  that  they  are  bound  in 
double  the  value  of  the  property,  as  stated  in  the 
affidavit  of  the  plaintiff,  for  the  delivery  thereof  to 
the  plaintiff,  if  such  delivery  be  adjudged,  and  for 
the  payment  to  him  of  such  sura  as  may,  for  any 
cause,  be  recovered  against  the  defendant.  Imme- 
diately upon  executing  and  delivering  the  under- 
taking to  the  sheriff,  the  defendant  must  give  a  writ- 
ten notice  to  the  plaintiff's  attorney,  of  not  less  than 
two  nor  more  than  six  days,  that  the  sureties,  in  the 
undertaking,  will  justify  before  a  judge  or  justice 
of  the  peace. 

The  qualifications  of  the  sureties  and  their  justifi- 
cation, is  the  same  as  that  of  bail  given  upon  the 
arrest  of  a  defendant.  (See  ante  p.  63-65.)  Upon  the 
justification  of  the  sureties,  the  sheriff  must  deliver  the 
property  to  the  defendant.  The  undertaking  of  the 
defendant,  where  the  sureties  have  justified,  must 
be  delivered  by  the  sheriff  to  the  plaintiff  in  action. 
Code,  §  423. 

The  sheriff  is  responsible  for  the  defendant's  sure- 
ties until  they  justify,  or  until  justification  is  com- 
pleted, or  is  expressly  waived,  by  the  plaintiff;  and 
he  may  retain  the  property  in  his  hands,  as  a  secu- 
rity, until  the  sureties  justify  ;  and  if  such  sureties, 
or  others  in  their  stead,  do  not  justify  at  the  time 
and  place  mentioned  in  the  notice,  the  sheriff  must 
deliver  the  property  to  the  plaintiff. 

Delivery  of  the  property  to  the  plaintiff.'] — If  the  de- 
fendant do  not  give  the  undertakinij^  and  notice  of 
justification,  within  three  days  after  the  sheriff  has 
taken  the  property  into  his  custody,  and  served  upon 
the  defendant  notice  thereof,  the  sheriff  must  deliver 


CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY.    79 

it  to  the  plaintiff,  unless  the  property  is  claimed  by- 
some  person  other  than  the  defendant  or  his  agent. 

See  post. 

Justifying  sureties] — If  the  defendant  does  not  de- 
sire to  retain  the  possession  of  the  property  taken, 
he  may  within  three  days  after  service  upon  him  of 
a  copy  of  the  affidavit,  notice  and  undertaking,  give 
a  written  notice  to  the  sheriff  that  he  excepts  to  the 
sufficiency  of  the  sureties.  If  he  fail  to  do  so,  he 
waives  all  objection  to  them.  By  excepting  to  the 
sufficiency  of  the  sureties,  the  defendant  waives  the 
right  to  demand  a  return  of  the  property  to  himself. 
The  defendant  having  given  notice  of  his  excep- 
tion to  the  sureties,  they  must  justify  upon  like  no- 
tice, in  the  same  manner,  and  before  the  same  offi- 
cers, as  in  cases  of  bail  on  the  arrest,  (as  to  Avhich 
see  ante  p.  63.) 

The  sheriff  is  responsible  for  the  sufficiency  of  the 
sureties,  until  the  objection  to  them  is  either  waived, 
by  the  defendant's  failing  to  except  within  the  three 
days,  or  until  they  justify,  or  new  sureties  are  sub- 
stituted and  justify;  when  the  sheriff 's  responsibility 
ceases.    Code,  §  212. 

Claiming  property  j — Any  person  except  the  defen- 
dant or  his  agent,  may  claim  the  property  of  the 
sheriff.  For  which  purpose  he  must  make  an  affi- 
davit, setting  out  his  title  thereto,  and  his  right  to 
the  possession  thereof.  The  affidavit  must  state  par- 
ticularly the  grounds  of  such  right  and  title.  The 
original  affidavit  must  be  served  upon  the  sheriff. 
Code  §  216. 

Upon  receiving  such  affidavit,  the  sheriff  must 
give  notii'c  of  the  claim  to  the  plaintiff  or  his  attor- 


80    CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY. 

ney,  who  must  then  indemnify  the  sheriff  against 
such  claim.     (For  form  of  notice,  see  Appendix) 

The  indemriit3^to  be  given  to  the  sheriff,  is  an  un- 
dertaking executed  by  two  sufficient  sureties,  which 
nmst  be  accompanied  by  their  affidavit,  that  tliey  are 
each  worth  double  the  value  of  the  property,  as  sta- 
ted in  the  affidavit  of  the  plaintiff,  and  are  freehold- 
ers and  householders  of  the  county.  (For  form  of 
indemnity  see  Appendix.) 

If  the  plaintiff  gives  the  sheriff  a  bond  of  indem- 
nity, the  sheriff  is  bound  to  deliver  the  property  to 
the  plaintiff,  notwithstanding  such  claiin.  It  can- 
not in  such  a  case  be  delivered  to  the  claimant.  The 
sheriff  has  the  right  to  retain  the  property  in  his  pos- 
session a  reasonable  time,  to  demand  the  indemni- 
ty of  the  plaintiff. 

Return  of  sheriff.] — After  the  sheriff  has  delivered 
the  property,  he  mu^t  make  his  return  of  his  proceed- 
ings and  within  twenty  days  after  taking  the  proper- 
ty, file  the  same  with  the  affidavit  and  notice,  with 
the  clerk  of  the  county  in  which  the  action  is  pend- 
ing.    Code,  §  217. 

If  the  sheriff  fails  to  make  his  return  within  the 
time  required,  the  party  entitled  to  have  the  return 
made,  may  serve  on  the  sheriff  a  notice  to  make 
such  return,  within  ten  days  thereafter,  or  show 
cause  at  a  special  term  of  the  court  to  be  designated 
in  the  notice,  why  an  attachment  should  not  issue 
against  him.  Rule  6.  Upon  the  sheriff's  failing  to 
show  cause,  an  order  may  be  issued  that  an  attach- 
ment issue  against  him,  and  it  maybe  issued  accor- 
dingly. The  attachment  must  be  directed  to,  and 
is  executed  by  the  coroner  of  the  county. 


OF    THE  INJUNCTION.  81 


SECTION  IV. 

Of  the  Injunction. 

The  Court  of  Chancery,  as  constituted  under  the 
former  Constitution,  was  empowered  to  employ  its 
process  in  restraining  the  defendant  from  the  com- 
mission or  continuance  of  an  act  prejudicial  to  the 
rights  of  the  co;rplainant.  This  process  was  called 
an  injunction,  and  was  a  writ  or  process  of  the  Court. 

The  Code  has  abolished  the  writ  of  injunction,  and 
an  injunction  by  order  is  substituted  therefor. 

Cases  in  which  allowed.] — The  cases  in  which  an  in- 
junction by  order  is  allowed,  are  those  in  which  some 
right  or  interest  of  the  plaintiif  may  be  impaired  or 
injured,  or  destroyed  by  the  act  or  proceedings  on 
the  part  of  the  defendant  during  the  litigation.  Thus 
in  an  action  to  restrain  a  nuisance,  the  court  will 
grant  the  injunction,  if  it  appear  that  the  continu- 
ance of  the  nuisance  would  endanger  health,  or  be 
productive  of  immediate  injury  or  irreparable  mis- 
chief So  in  an  action  between  partners,  for  the 
dissolution  and  settlement  of  the  partnership  con- 
cerns, if  it  appear  that  the  defendant  is  fraudulently 
disposing  of  the  partnership  property,  he  will  be  re- 
strained. And  generally,  where  the  commission  or 
continuance  of  an  act  will  produce  an  injury  to  the 
plaintiff;  or  where  during  the  litigation,  the  defend- 
ant does  or  threatens,  or  is  about  to  do,  or  suffers, 
or  procures  some  act  to  be  done,  in  violation  of  the 
plaintiff's  rights,  respecting  the  subject  of  the  action 

and  tending  to  render  the  judgment  ineffectual;  the 

6 


82  OF    THE    INJUNCTION. 

court  in  such  cases,  will  grant  to  the  plaintiff  an  or- 
der to  restrain  such  acts.  There  is  another  class  of 
cases,  where  an  injunction  is  authorised,  which  did 
not  allow  of  it  before  the  Code.  It  is  now  provided 
{Code  '  219,)  that  where  during  the  pendency  of  the 
action,  it  shall  appear  that  the  defendant  threatens 
or  is  about  to  remove,  or  dispose  of  his  property  with 
intent  to  defraud  his  creditors,  a  temporary  injunc- 
tion may  be  granted  to  restrain  such  removal  or  dis- 
position, 

This  is  a  substitute  for  the  former  proceeding  by 
attachment  under  the  act  to  "abolish  imprisonment 
for  debt,"  where  in  similar  cases,  a  warrant  might 
be  issued  for  the  arrest  of  the  defendant. 

Injunction  when  applied  for.'\ — The  application  for 
an  injunction  may  be  made  at  the  commencement 
of  the  action,  or  at  any  time  afterwards,  before 
judgment  is  actually  rendered.  In  cases  where  the 
injunction  is  proper,  it  is  advisable  to  apply  for  it  at 
the  time  the  summons  is  issued,  when  no  notice  of 
the  application  need  be  given  to  the  defendant,  un- 
less the  court  or  judge  to  whom  the  application  is 
made,  deem  it  proper,  that  the  defendant,  or  any  of 
the  defendants,  should  be  heard,  before  granting  it. 
If  the  injunction  is  not  applied  for  until  after  the 
defendant  has  answered  the  complaint,  the  plaintiff 
must  give  notice  to  the  defendant  of  the  time  and 
place  of  the  application,  and  the  name  of  the  court 
or  officer  to  whom  it  will  be  made.  This  notice  is 
like  other  notices  for  a  special  motion,  and  must  be 
accompanied  by  copies  of  the  affidavits  and  papers 
upon  which  it  is  founded. 

In  case  the  court  or  judge  deem  it  proper  that  the 


OF  THE  INJUNCTION.  83 

defendant  should  be  heard  upon  the  application,  he 
will  make  an  order,  requiring  the  defendant  to  show 
cause,  at  a  specified  time  and  place,  why  the  injunc- 
tion should  not  be  granted.  A  copy  of  this  order 
must  be  served  on  the  defendant,  with  a  copy  of 
the  affidavit  upon  which  the  injunction  is  applied 
for.  Until  the  time  for  shewing  cause,  and  until  the 
decision  upon  the  application,  the  judge  will  grant 
an  injunction,  to  restrain  the  defendant  from  the 
commission  or  continuance  of  the  acts  complained 
of.  Code,  §  223.  And  where  the  injuntion  is  applied 
for  after  answer,  when,  as  has  been  stated,  a  notice 
of  the  motion  is  necessary,  the  judge  will  allow  a 
temporary  injunction  to  restrain  the  defendant  un- 
til the  motion  is  decided.  Code,  §  221.  The  tempo- 
rary injunction  is  granted  upon  the  application  of 
the  plaintiff,  without  notice  to  the  defendant. 

Who  may  grant  the  injunction.]^ — The  order  may  be 
made  by  the  court  in  which  the  action  is  pending, 
or  by  a  judge  of  such  court,  or  by  a  county  judge. 
Code,  §  218.  If  made  by  a  judge  of  the  court,  or  by 
a  county  judge,  it  becomes  the  order  of  the  court, 
and  may  be  enforced  as  such. 

Upon  what  injunction  granted.] — Where  the  object  of 
the  injunction  is  to  restrain  the  defendant  from  the 
commission  or  continuance  of  some  act,  the  com- 
mission or  continuance  of  which,  during  the  litiga- 
tion, would  produce  injury  to  the  plaintiff,  and  these 
facts  appear  by  the  complaint,  the  order  may  be 
granted  upon  the  complaint  alone,  without  an  affi- 
davit ;  in  which  case  it  would  seem,  that  the  com- 
plaint should  contain  a  prayer  for  the  injunction. 
Hovey  v.  McCrea,  4  How.  Pr.  Rep.,  31.  Thus,  where 
the  action  is  for  the  foreclosure  of  a  mortgage,  and 


84  OF    THE   INJUNCTION. 

the  complaint  states  that  the  defendant  is  commit- 
ting waste  upon  the  mortgaged  premises,  and  thus 
rendering  the  security  inadequate,  the  judge  or  the 
court  will  grant  a  temporary  injunction  upon  the 
complaint  alone  to  restrain  such  act.  So,  where  the 
action  is  by  one  partner  against  his  copartner,  to 
obtain  a  dissolution  of  the  copartnership  and  a  set- 
tlement of  the  copartnership  business,  and  the  com- 
plaint alleges,  that  the  defendant  is  fraudulently 
disposing  of  the  copartnership  property,  an  injunc- 
tion will  be  allowed,  enjoining  the  defendant  from 
disposing  of  the  property.  If  the  injunction  is  ap- 
plied for  on  the  complaint  alone,  the  complaint 
must  be  verified.  When  the  act  complained  of 
occurs  after  the  suit  is  commenced,  the  complaint 
may  be  amended,  and  an  affidavit  of  the  fac's  may 
be  made  upon  which  the  injunction  will  be  granted. 

Where,  during  the  pendency  of  the  action,  the 
defendant  does  or  threatens,  or  is  about  to  do,  or 
procures,  or  suffers  some  act  to  be  done  in  violation 
of  the  plaintiff's  rights  respecting  the  subject  of  the 
action,  and  tending  to  render  the  judgment  ineffect- 
ual, the  injunction  can  only  be  allowed  upon  an 
affidavit,  setting  forth  the  facts.  So,  where,  during 
the  pendency  of  the  action,  the  defendant  threatens, 
or  is  about  to  remove  or  dispose  of  his  property,  with 
intent  to  defraud  his  creditors,  the  facts  must  be 
made  to  appear  to  the  court  or  judge  by  aflidavit. 

The  affidavit.'] — Where  the  application  for  the  in- 
junction is  made  during  the  pendency  of  the  action, 
an  affidavit,  as  has  been  stated,  is  necessary.  It 
must  appear  to  the  court  or  officer  to  whom  the  ap- 
plication for  an  injunction  is  made,  that  the  plaintiff 
is  entitled  to  the  relief  demanded      For  this  purpose, 


OF    THE    INJUNCTION.  85 

an  affidavit  must  be  drawn,  stating^  the  facts  con- 
stituting the  grounds  cf  complaint  from  which  the 
court  or  officer  is  to  decide  upon  the  propriety  or 
necessity  of  restraining  the  defendant.  This  affida- 
vit may  bo  made  by  the  plaintiff  or  by  any  person 
on  his  behalf  The  court  or  judge  must  be  satisfied 
that  sufficient  grounds  exist  for  granting  the  order, 
and  therefore  the  fads  constituting  the  complaint 
siiould  be  sworn  to  positively  and  not  upon  inform- 
ation and  belief  merely.  Thus,  where  the  ground 
of  the  application  is  that  the  defendant  threatens, 
or  is  about  to  remove  or  dispose  of  his  property  with 
intent  to  defraud  his  creditors,  the  facts  and  circum- 
stances upon  which  the  belief  of  such  intent  exists, 
must  be  stated  in  the  affidavit.  Comfort  v.  Gillespie, 
13  Wend.  E.,  404.  The  affidavit  need  not  be  enti- 
tled. A  copy  must  in  all  cases  be  served  on  the 
defendant  with  the  injunction.  Code,  §  220. 

The  complaint  in  the  action,  may  be  used  upon 
the  application,  in  addition  to  the  affidavit. 

A  supplementary  affidavit  will  not  afterwards  be 
allowed,  to  oppose  a  motion  by  the  defendant  to 
vacate  or  modify  the  injunction,  unless  the  defend- 
ant moves  upon  affidavits.    See  post. 

The  security.] — Where  no  provision  is  made  by 
statute,  as  to  the  security  to  be  given,  upon  allow- 
ing an  injunction,  the  court  or  judge  v.ho  makes 
the  order  shall  require  a  written  undertaking  on  the 
part  of  the  plaintiff,  which  may  be  with  or  without 
sureties,  in  the  discretion  of  the  court  or  officer,  and 
must  be  to  the  effect  that  the  plaintiff  will  pay  to 
the  defendant,  or  to  the  party  enjoined,  such  dama- 
ges, not  exceeding  the  amount  fixed  by  the  court 
or  judge,  as  he  may  sustain  by  reason  of  the  injunc- 


86  OF   THE   INJUNCTION. 

tion,  if  the  court  shall  finally  decide  that  the  plain- 
tiff was  not  entitled  thereto.  (For  form  of  under- 
taking, see  Appendix,) 

In  order  to  fix  the  amount  of  the  undertaking, 
the  court  or  judge  may  direct  a  reference  to  ascer- 
tain the  damages,  or  may  examine  witnesses  or 
arrive  at  the  amount  in  any  other  way  that  he  may 
direct. 

If  the  undertaking  is  made  by  the  plaintiff  with- 
out sureties  he  should  justify,  by  an  affidavit  endor- 
sed upon  the  undertaking,  that  he  is  a  householder 
or  freeholder  in  this  state,  and  is  worth  the 
amount  mentioned  in  the  undertaking  over  and 
above  all  debts  and  liabilities,  and  if  sureties  are 
given,  they  should  in  like  manner  justify.  See 
Rules  Sup,  Ct.  76.  Carroll  v.  Sand,  10  Paige  298. 

The  execution  of  the  undertaking  by  the  plain- 
tiff and  the  sureties  should  be  acknowledged  or  proved 
in  the  same  manner  as  is  required  by  statute,  to 
have  conveyances  of  real  estate  acknowledged  or 
proved  to  entitle  them  to  be  recorded.  Beech  v. 
Southworth,  et  al.  1  Code  Rep.  99,  Rule  76. 

Filing  the  undertaking.]  The  undertaking  to  be 
executed  upon  granting  an  injunction,  must  be  filed 
by  the  court  or  judge  who  makes  the  order,  with 
the  clerk  of  the  county,  designated  in  the  com- 
plaint as  the  place  of  trial.    Code,  §  423. 

Injunction  against  corporations.]  An  application  for 
an  injunction  to  suspend  the  general  and  ordinary 
business  of  a  corpor  ition  can  only  be  made  to  the 
court  or  a  judge  of  the  court  A  county  judge  has 
not  power  to  make  the  order. 

Notice  of  the  application,  must  be  given,  of  at 
least  eight  days,  to  the  proper  officers  of  the  corpo- 


\ 


OF    THE   iNJUxNCTION.  87 

ration,  of  the  time  and  place  of  the  motion,  and 
the  name  of  the  court  or  judge,  before  whom  the 
motion  will  be  made.  A  copy  of  the  affidavit  upon 
which  the  motion  is  founded,  must  be  served  with 
the  notice.  No  notice  of  the  application,  however,  is 
necessary,  if  the  people  of  this  state  are  the  party 
who  make  the  application,  nor  when  the  action  or 
proceeding  is  instituted  to  enforce  the  liability  of 
stockholders  in  corporations  ahd  associations  for 
banking  purposes,  after  the  first  day  of  January,  one 
thousand  eight  hundred  and  fifty,  as  such  proceed- 
ings are  or  shall  be  provided  by  law.  Nor  is  any 
notice  necessary,  if  the  plaintiff,  at  the  time  he  ap- 
plies for  the  injunction,  gives  security ;  which  he 
may  do  and  take  the  order  without  apprizing  the 
defendants. 

The  security  to  be  given  in  such  cases,  is  a  writ- 
ten undertaking,  executed  by  two  sufficient  sureties, 
to  be  approved  of  by  the  court  or  judge,  to  the  effect 
that  the  plaintiff  will  pay  all  damages,  not  exceed- 
ing the  sum  to  be  mentioned  in  the  undertaking, 
which  such  corporation  may  sustain,  by  reason  of 
the  injunction,  if  the  court  shall  finally  decide  that 
the  plaintiff  was  not  entitled  thereto.  (For  form  of 
undertaking,  see  Appendix.) 

The  manner  of  fixing  the  amount  of  the  under- 
taking may  be  by  a  reference,  or  in  such  way  as  the 
court  or  judge  may  direct. 

The  approval  of  the  judge  must  be  endorsed  upon 
the  undertaking.  The  sureties  must  justify  in  the 
same  manner  as  in  cases  of  injunction  against  in- 
dividuals, (see  ante  p.  86)  and  must  in  like  manner  be 
proved  and  acknowledged  and  filed  in  the  office  of 
the  clerk  of  the  county  where  the  trial  is  to  be  had. 


88  OF    THE    INJUNCTION. 

Application  to  vacate  or  modify  order.']  If  the  in- 
junction has  been  granted  by  a  judge,  without  no- 
tice to  the  defendant,  he  may,  at  any  time  before 
the  trial  of  the  action,  move  to  vacate  or  modify  it. 

This  motion  must  be  made  to  the  court,  in  which 
the  action  is  pending,  at  a  special  term,  and  it  can- 
not be  made  to  a  judge  at  chambers,  nor  to  a  county 
judge,  notwithstanding  the  order  may  have  been 
granted  out  of  court,  by  a  judge  of  the  court,  or  a 
county  judge.  A  notice  of  eight  days  must  be  given 
to  the  plaintiff.     (For  form  of  notice,  see  Appe?idix.) 

If  the  complaint  or  affidavit  upon  which  the  in- 
junction was  allowed,  is  defective,  in  substance; 
that  is,  does  not  state  a  sufficient  cause  of  action, 
or  make  out  a  case  entitling  the  plaintiff  to  an  order 
restraining  the  defendant,  the  defendant  may  move 
upon  the  complaint,  or  upon  the  complaint  and  affi- 
davit only,  to  vacate  or  modify  the  injunction.  This 
is  always  the  proper  course  when  it  can  be  success- 
fully done,  for  if  the  defendant  moves  upon  his  an- 
swer, or  upon  affidavits,  the  plaintiff  has  the  right, 
in  addition  to  the  complaint  and  affidavit  on  which 
the  injunction  was  granted,  to  oppose  the  motion, 
by  other  affidavits  and  proofs,  to  make  out  a  case 
entitling  him  to  the  continuance  of  the  injunction. 

The  affidavit  or  answer  ( f  the  defendant,  upon 
which  he  moves  to  vacate  or  modify  the  injunction, 
must  positively  deny  the  equity  of  the  complaint, 
and  of  the  facts  alleged  as  constituting  the  right  to 
the  continuance  of  the  order.  A  denial  upon  infor- 
mation and  belief  merely  is  not  sufficient. 

It  is  not  a  matter  of  course,  to  vacate  the  order 
upon  a  denial  by  the  defendant.  The  granting  or 
continuance  of  an  injunction  rests  in  the  sound  dis- 


OF    THE    ATTACHMENT.  89 

cretion  of  the  court.  It  will  be  governed  by  the  na- 
ture of  the  case,  and  the  facts  disclosed,  and  from 
them  determine  the  motion.  The  court  may,  how- 
ever, modify  the  injunction  in  any  respect.  Code, 
§  225. 

SECT]  ON  V. 
Of  the  Attachment. 

Among  the  pr  visional  remedies  provided  by  law 
for  the  collection  of  debts,  or  the  enforcement  of 
private  rights,  none  are  more  important,  summary 
and  useful,  than  "  attachments  against  foreign  cor- 
porations, and  absconding,  concealed  and  non-resi- 
dent debtors."  And  although  the  several  statutes 
un  !er  which  this  proceeding  is  authorized  are  ex- 
plicit as  to  the  manner  of  suin  out  the  attachment, 
a  more  particular  detail  of  the  practice  under  them, 
may  be  useful. 

The  provisions  of  the  Revised  Statutes,  concern- 
ing attachments  against  absconding,  concealed  and 
non-resident  debtors,"  (2  Rev.  Stat.,  p.  3,)  as  we  have 
before  seen,  {ante  p.  1,)  are  not  abrogated  by  the 
Code  of  Procedure.  All  the  remedies  provided  by 
that  article  of  the  Revised  Statutes,  may  be  pursued 
in  appropriate  cases.  In  addition,  it  is  provided  by 
Section  227  of  the  Code,  that  the  property  of  a  corpo- 
ration created  by  or  under,  the  laws  of  another  state 
or  government,  or  country,  or  of  a  defendant  who  is 
n;  t  a  resident  of  this  state,  or  who  has  absconded 
or  concealed  himself,  may  be  attached,  as  a  security 
for  the  satisfaction  of  such  judgme.it  as  the  plaintiff 
may  recover. 

Attachment  when  applied  for .'] — In  order  to  lay  the 


90  OF    THE    ATTACHMENT. 

foundation  for  the  attachment,  a  summons  and  com- 
plaint must  be  prepared  as  in  other  actions  for  the 
recovery  of  money.  The  complaint  must  contain  a 
statement  of  a  cause  of  action  for  the  recovery  of 
money  onlij,  as  attachments  are  allowed  for  no  other 
causes  of  action  The  attachment  may  be  obtain- 
ed at  the  time  of  issuing  the  summons  or  at  any 
time  afterwards,  when  the  cases  arise,  which  au- 
thorise the  issuing  of  the  warrant.  If,  therefore, 
during  the  pendency  of  the  suit,  the  defendant  ab- 
sconds with  intent  to  defeat  the  satisfaction  of  the 
judgm.ent,  or  does  any  act  for  which  an  attachment 
against  his  property  might  in  the  first  instance  have 
been  issued,  the  plaintiff  may  obtain  the  warrant  in 
the  same  manner  as  at  the  time  of  issuing  the  sum- 
mons. Code  §  227. 

Who  may  grant  the  attachment^ — The  warrant  of  at- 
tachment can  only  be  issued  by  the  authority  of  a 
judge  of  the  court  in  which  the  action  is  pending, 
or  of  a  county  judge.  Code  §  228. 

The  application,  therefore,  must  be  made  to  one 
of  these  officers  for  an  order  allowing  the  warrant 
to  issue,  otherwise  it  would  be  irregular,  and  the  offi- 
cers and  all  concerned  in  executing  it,  would  be 
trespassers. 

The  affidavit.]— k  warrant  of  attachment  cannot 
be  allowed  upon  the  complaint  alone ;  it  is  not  usual, 
nor  would  it  be  proper  to  state  in  the  complaint  the 
grounds  upon  which  the  attachment  is  applied  for. 
An  affidavit,  therefore  must  be  prepared.  It  need  not 
be  made  by  the  plaintiff,  but  may  be  made  by  any 
person  who  can  swear  positively  to  the  facts  neces- 
sary to  be  stated  in  the  affidavit.  A  statement  ol 
facts  upon  information  and  belief  merely,   is  not 


OF    THE   ATTACHMENT.  91 

sufficient,  and  the  facts  and  circumstances  must  be  de- 
tailed in  the  affidavit,  that  the  officer  may  judge 
whether  it  is  a  proper  case  for  the  allowance  of  the 
warrant.  Ex  parte  Robinso?i,  21  Wend.  Rep.  072.  The 
affidavit  must  state  that  a  cause  of  action  exists 
against  the  defendant,  and  the  nature  thereof,  and 
it  would  seem,  that  it  must  be  an  action  arising  on 
contract,  express  or  implied,  It  must  also  state  the 
amount  of  the  claim,  and  that  the  defendant  is  either 
a  foreign  corporation,  or  not  a  resident  of  this  state, 
or  has  departed  therefrom  with  intent  to  defraud  his 
creditors  or  to  avoid  the  service  of  a  summons,  or 
keep?  himself  concealed  in  this  state,  with  a  like 
intent  of  avoiding  the  service  of  a  summons.  The 
affidavit  need  not  be  entitled. 

The  security.'] — Before  issuing  the  warrant  of  at- 
tachment, the  judge,  to  whom  the  application  is 
made,  must  require  a  written  undertaking,  on  the 
part  of  the  plaintiff,  with  sufficient  surety,  to  the  ef- 
fect that  if  the  defendant  recover  judgment,  the 
plaintiff  will  pay  all  costs  that  may  be  awarded  to 
the  defendant,  and  all  damages  which  he  may  sus- 
tain, by  reason  of  the  attachment,  not  exceedinffthe 
sum  specified  in  the  undertaking,  which  must  be  at 
least  two  hundred  and  fifty  dollars,  and  as  much 
more  as  the  judge  may  require. 

The  judge  must  fix  the  amount  of  the  security, 
which  he  may  do  by  a  reference,  or  in  any  other 
way,  ascertain  the  value  of  the  property  intended  to 
be  attached.  The  undertaking  should  be  in  at  least 
double  the  value  of  the  property,  and  must,  in  all 
cases,  be  in  the  sum  of  not  less  than  two  hundred 
and  fifty  dollars.  The  undertaking  must  be  acknow- 
ledged in  the  same  manner  as  undertakings  required 


92  OF    THE    ATTACHMENT. 

upon  the  order  to  restrain  the  defendant,  and  must 
be  approved  by  the  judge.  The  sureties  should  jus- 
tify as  in  other  cases,  by  an  endorsement  of  an  affi- 
davit upon  the  undertaking",  that  they  are  house- 
holders or  freeholders  of  this  State,  and  worth  dou- 
ble the  amount  mentioned  in  the  undertaking,  over 
and  above  all  debts  and  liabilities. 

The  undertaking,  after  the  attachment  is  exe- 
cuted, must  be  filed  with  the  clerk  of  the  county, 
designated  in  the  complaint  for  the  trial  of  the  ac- 
tion.    (For  form  of  undertaking,  see  Appendix.) 

Attachment,  how  and  by  whom  executed. — The  sheriff 
of  the  county  in  which  the  property  to  be  attached 
may  be,  is  the  only  olhcer  who  can  execute  the  at- 
tachment, and  it  must  be  directed  to  him  by  his 
name  and  official  title.  (See  form,  Appendix.)  Se- 
veral warrants  may  be  issued  at  the  same  time  to 
the  sheriff  of  different  counties,  to  attach  the  pro- 
perty of  the  defendant  in  those  counties.  The  war- 
rant requires  the  sheriff  to  attach  and  safely  keep 
all  the  proper  y  of  the  defendant  within  his  county. 

Upon  receiving  the  warrant  of  attachment,  the 
sheriff  must  proceed  to  attach  all  the  real  and  per- 
sonal estate  of  the  defendant  in  his  county.  He 
must  take  into  his  custody  all  money  and  bank 
notes,  all  books  of  account,  vouchers  and  papers  re- 
lating to  the  property,  debts,  credits,  and  effects  of 
the  defendant,  and  all  evidences  of  title  to  his  real 
estate.     1  R.  S.  766,  §  7. 

The  sheriff  is  required,  upon  seizing  the  property, 
with  the  assistance  of  two  appraisers,  to  make  an 
inventory  of  the  property,  stating  the  estimated  value 
of  the  several   articles  of  personal   property,  and 


OF    THE    ATTACHMENT.  93 

stating  such  of  them  as  are  perishable.  The  inven- 
tory must  he  signed  by  the  sheriff  and  appraisers, 
and  returned  within  ten  days  after  the  seizure  of 
the  property,  to  the  judge  who  allowed  the  attach- 
ment. 

Perishable  property.] — If  any  goods  seized  under  an 
attachment,  except  vessels,  be  perishable,  the  sheriff 
is  required  to  sell  them  under  an  order  of  the  judge 
who  allowed  the  attachment,  and  retain  the  pro- 
ceeds after  deducting  the  expenses  of  the  sale,  to  be 
certified  by  such  judge.     Code,  §  233. 

Property  claimed  by  another., — If  any  of  the  goods 
seized  under  the  attachment,  as  the  property  of  the 
delendant,  are  claimed  by  any  other  person  as  his 
property,  the  sheriff  is  required  to  summon  a  jury 
to  try  such  claim,  as  in  case  of  a  levy  under  an  ex- 
ecution.    1.  R.  S.  767,  §  10. 

If  the  jury  find  the  goods  to  be  the  property  of 
the  claimant,  the  sheriff  must  forthwith  deliver  them 
to  the  claimant,  unless  the  plaintiff  shall  by  an  un- 
dertaking, with  sufficient  sureties,  indemnify  the 
sheriff  for  the  detention  of  such  goods;  in  which 
case  the  sheriff  is  required  to  detain  the  goods.  (For 
form  of  undertaking,  see  Appendix.) 

Suits  by  sheriff.] — The  sheriff  may,  by  the  order  of 
the  judge  or  the  court,  institute  legal  proceedings  in 
his  own  name,  or  in  the  name  of  the  defendant,  as 
may  be  necessary,  for  the  purpose  of  collecting  and 
receiving  into  his  possession  all  debts,  credits  and 
effects  of  the  defendant,  and  may  discontinue  the 
same  at  such  times  and  on  such  terms  as  the  court 
or  judge  may  direct.  Such  suits  may  also  be  prose- 
cuted by  the  defendant,  upon  giving  to  the  sheriff 
an  undertaking  with  two  sufficient  sureties,  to  in- 


94  OF    THE    ATTACHMENT. 

demnify  the  sheriff.  Such  sureties  must,  when  re- 
quired by  the  sheriff,  justify  by  making  an  affidavit 
that  they  are  each  householders  and  worth  double 
the  penalty  of  the  bond,  over  and  above  all  de- 
mands and  liabilities.  Code,  §  238. 

Satisfijirig  judgment.] — Upon  a  recovery  of  a  judg- 
ment by  the  plaintiff,  the  sheriff  is  required  to  satis- 
fy the  same  out  of  the  property  attached,  if  sufficient 
for  that  purpose. 

1.  By  paying  over  to  the  plaintiff  the  proceeds  of  all  sales  of  perish- 
able property,  and  of  any  vessel,  or  share  or  interest  in  any 
\essel,  sold  by  him,  or  of  any  debts  or  credits  collected  by  him, 
or  so  much  as  shall  be  necessary  for  ihat  purpose. 

2.  If  any  balance  remain  due,  and  an  execution  shall  have  been 
issued  on  such  judgment,  he  shall  proceed  to  sell  under  such 
execution  so  much  of  the  attached  property,  real  or  personal, 
(except  notes  and  other  evidences  of  debts,  and  bonds,  as  men- 
tioned in  the  fourth  subdivision,  post,)  as  may  be  necessary  to 
satisfy  the  balance,  if  enough  for  that  purpose  shall  remain  in 
his  hands;  and  in  case  of  the  sale  of  any  rights  or  shares  in  the 
stock  of  a  corporation  or  association,  the  sheriff  shall  execute 
to  the  purchaser  a  certificate  of  sale  thereof,  and  the  purchaser 
shall  thereupon  have  all  the  riglits  and  privileges,  in  respect 
thereto,  which  were  had  by  such  defendant. 

3.  If  any  of  the  attached  property  belonging  to  the  defendant,  shall 
have  passed  out  of  the  hands  of  the  sheriff  witliout  having  been 
sold  or  converted  into  money,  such  sheriff  shall  repossess  him- 
self of  the  same,  and  for  that  purpose,  shall  have  all  the  authori- 
ty which  he  had  to  seize  the  same  under  the  attachment;  and 
any  person  nho  shall  wilfully  conceal  or  withhold  such  property 
from  the  sheriff,  shall  be  liable  to  double  damages,  at  the  suit  of 
the  party  injured. 

4.  Until  the  judgment  against  the  defendant  shall  be  paid,  the 
sheriff  may  proceed  to  collect  the  notes,  and  other  evidences  of 
debt,  and  the  debts  that  may  have  been  seized  or  attaciied  under 
the  warrant  of  attachment,  and  to  prosecute  any  bond  he  may 
have  taken  in  the  course  of  such  proceedings,  and  apply  the  pro- 
ceeds thereof  to  the  payment  of  the  judgment. 

When  the  judgment,  and  all  costs  of  the  proceedings  shall  have 
been  paid,  the  sheriff,  upon  reasonable  demand,  shall  deliver 
over  to  liie  defendant  the  residue  of  the  attached  property,  or  the 
proceeds  thereof. 


OF    THE    ATTACHMENT.  95 

Judgment  for  defendant.] — ^If  the  defendant  recover 
judgrricnt  against  the  plaintiff,  .n  the  action,  any 
bond  or  undertaking,  taken  by  the  sheriff,  except 
such  as  are  given  by  a  pUiintiff  to  authorize  the 
brino^ing-  of  suits  in  the  stead  of  the  sheriff,  an  I  all 
proce^^ds  of  sal'^s  and  mo:  eys,  collected  by  him,  and 
all  the  property  attached,  remaining  in  his  hands 
sha'l  be  delivered  by  him  to  the  defen  'ant  or  his 
agent  on  request,  and  the  warr  nt  discharged,  and 
the  property  releas  :d  therefrom. 

Motion  to  discharge  attachment.] — The  defendant 
after  he  has  appeared  in  the  action,  that  is,  after  he 
shall  have  given  notice  of  appear.u:ce  or  answered 
the  complaint,  may  apply  for  an  order  to  discharge 
the  attachment. 

The  applicati  n  may  be  n]ade  to  the  conrt  in 
which  the  action  is  pending,  or  to  the  judge  who 
issned  the  altichment;  it  cannot  I'e  ira'e  to 
another  judge  nor  to  a  county  judge,  a;:d  must  be 
upon  notice  of  at  lerst  eight  days  to  the  plaintiff. 

Upon  making  the  application,  the  defendant  must 
deliver  to  the  court  or  judge,  a  written  undertaking, 
executed  by  at  least  two  sureties,  who  must  be 
residents  and  freeholders  in  this  slate,  and  who  must 
be  app-  oved  of  by  the  court  or  judge,  to  the  effect 
that  the  sureties  will  on  demand  pay  to  the  plaintiff 
the  amount  of  the  judgment  that  may  be  recovered 
against  the  defendant,  in  the  action,  not  exi'eeding 
the  sum  specified  in  the  undertaking,  which  must 
be  at  least  double  the  amount  claimed  by  the  plain- 
tiff in  his  complaint.  (For  form  of  undertaking,  see 
Appendix.) 

Filing  luarrant.] — When  the  attachment  is  fully 


96  OF    THE   SUMMONS. 

executed  or  discharged,  the  sherifl^must  make  return 
of  his  proceedings  under  it,  and  file  the  same  with 
the  clerk  of  the  county  in  which  the  action  is 
pending. 

If  the  sheriff  fails  to  make  his  return  as  required, 
the  party  entitled  to  have  such  return  made,  may 
serve  on  the  sheriff  a  notice  to  make  and  file  his 
return,  within  ten  days  thereafter,  or  show  cause  at 
a  special  term  of  the  court,  to  be  designated  in  the 
notice,  why  an  attachment  should  not  be  issued 
.  against  him.  And  upon  his  failing  to  show  cause 
or  file  his  return,  the  court  may  order  an  attachment 
to  be  issued  against  him,  and  an  attachment  will 
be  issued  accordingly. 

SECTION  VI. 

Of  the  Summons. 

The  summons  which  is  required  to  be  served,  as 
the  commencement  of  the  action,  is  not  unlike,  in 
its  purport  and  effect,  a  notice  to  plead,  which  un- 
der the  former  practice,  was  endorsed  upon  the  de- 
claration. It  is  intended  to  apprise  the  defendant 
of  the  action,  and  notify  him,  that  if  he  designs  to 
defend  the  suit,  he  must  serve  his  answer  in  a  par- 
ticular way,  and  within  a  given  time,  or  judgment 
will  be  entered  against  him. 

What  the  summons  must  contain.] — The  summons 
should  le  directed  to  the  defendant  and  subscribed 
by  the  plamtiff,  if  he  designs  to  prosecute  the  action 
in  person,  otherwise  it  should  be  subscribed  by  his 
attorney.  It  must  contain  a  notice  requiring  the  de- 
fendant to  answer  the  complaint  and  serve  a  copy 


OF  THE   SUMMONS.  97 

of  his  answer,  upon  the  plaintiff  or  his  attorney, 
whose  name  is  subscribed  to  the  summons,  at  some 
place  within  this  state  to  be  specified  in  tiie  sum- 
mons, usually  the  office  of  the  attorney,  mentioning^ 
the  number  of  the  street,  and  city  or  village,  where 
the  attorney  resides,  and  where  there  is  a  post  office, 
within  twenty  days  after  the  service  of  the  summons 
exclusive  of  the  day  of  service.  If  the  action  be  one 
arising  on  contract  for  the  payment  of  money  only, 
a  notice  must  also  be  inserted  in  the  summons,  that 
if  the  defendant  fail  to  answer  the  complaint,  the 
plaintiff  will  take  judgment  for  a  snm  specified  there- 
in, which  must  be  the  amount  claimed  by  the  plain- 
tiff to  be  due  upon  the  contract. 

And  in  all  other  actions  it  mast  contain  a  notice 
that  if  the  defendant  fail  to  answer  the  complaint, 
the  plaintiff  will  apply  to  the  court,  for  the  relief  de- 
manded in  the  complaint.  It  is  not  necessary  to 
name  any  time  or  place  in  the  summons  at  which 
the  application  for  relief  will  be  made,  but  general- 
ly, that  the  plaintiff  will  apply  to  the  court. 

The  application  in  such  cases,  for  the  relief  de- 
manded, can  be  made  on  any  motion  day,  at  any 
special  term  held  in  the  district  embracing  the  coun- 
ty in  which  the  action  is  triable,  or  in  a  county  ad- 
joining that  in  which  it  is  triable ;  it  may  also  be 
made  at  any  circuit  court  in  the  county  where  the 
action  is  triable.  It  cannot,  however,  be  made  at  a 
circuit  court  in  any  other  county.     Ruledl. 

If  the  action  be  to  recover  the  price  of  goods  sold 
and  delivered,  or  work  done,  the  summons  should 
state  that  if  the  defendant  fail  to  answer,  the  plain- 
tiff will  take  judgment  for  the  amount  claimed,  and 

7 


98  OF  THE  SUMMONS. 

it  is  improper  to  slate  that  the  plaintiff  will  apply  to 
the  court  for  the  relief  demanded.     Dibblee   v.    Ma 
son  I,  Code  Rep.  37. 

Thus,  inactions  for  the  recovery  of  money  arising 
on  contract,  express  or  implied,  when  the  amount 
claimed  is  easy  of  liquidation,  and  no  discretion  is 
to  be  exercised  in  arriving  at  the  amount,  the  sum- 
mons should  be  in  this  form. 

But  in  actions  where  the  damages  to  be  recovered 
are  uncertain  and  are  to  be  assessed  by  a  jury  or  re- 
ferees, or  where  the  relief  demanded  is  of  a  special 
nature,  such  as  the  foreclosure  and  sale  of  mortga- 
ged premises,  or  the  partition  of  lands,  the  summons 
mu^t  be  in  the  other  form,  that  is,  that  the  court 
will  be  applied  to  for  the  relief  demanded. 

Thus  in  an  action  for  an  assault  and  battery,  tres- 
pass to  the  person  or  pro;  erty,  slander  a  id  the  like, 
the  summons  should  be  in  this  form. 

It  is  not  necessary  in  any  case  to  serv^e  the  com- 
plaint on  the  defendants  in  the  first  instance,  but  the 
summons  may  be  served  without  the  complaint,  in 
which  case  a  notice  should  be  contained  in  the  sum- 
mons, of  the  place  where  the  complaint  will  be  filed, 
{Code  §  130)  and  in  cases  of  publication  of  the  sum- 
mons against  an  absent  defendant,  the  complaint 
must  be  first  liled  in  the  proper  county,  and  the  sum- 
mons must  contain  a  notice  of  the  time  and  place 
of  filing  the  complaint.  (For  the  forms  of  the  differ- 
en:  kinds  of  summons,  see  Appendix.)  Codc\  135, 
sub.  6. 

Limiiim^  time  of  service'] — If  the  plaintiff  desires  to 
have  the  summons  speedily  served,  he  may  endorse 
upon  the  summons  a  direction  to  the  sheriff  to  serve 


OF    THE     COMPLAIM.  99 

it  within  a  specified  time.  In  which  case  the  sher- 
iff is  bound  to  serve  the  summons  accordingly, 
{Code  §  133)  and  in  detault  of  his  doing  so,  the  plain- 
tiff may  serve  him  with  a  notice  requiring  such  ser- 
vice to  be  made  in  ten  days  thereafter,  or  show 
cause,  at  a  special  term,  therein  specified,  why  an 
attachment  should  not  issue  against  him.    Rule  6. 


SECTION  VII. 
Of  the  Complaint 

It  must  not  be  supposed  that  because  pleadings  in 
actions  have  been  abridged,  and  all  forms  abolished, 
that  therefore  very  little  or  any  skill  or  judgment  is 
necessary  in  framing  a  complaint  or  answer;  on  the 
contrary,  the  tendency  and  effect  of  this  change  is 
to  throw  every  pleader  upon  his  own  resources,  with 
but  little  aid  from  former  guides  or  precedents. 

The  complaint  is  the  most  important  pleading  on 
the  part  of  the  plaintiff.  It  is  the  foundation  of  the 
suit,  and  all  the  subsequent  pleadings  depend  upon 
it.  It  must  contain  the  grounds  on  which  the 
plaintiff  demands  his  moneys,  goods,  chatties,  or 
lands.  It  must  state  such  facts  as,  when  proved  or 
admitted  to  be  true,  will  show  the  plaintiff  has  not 
only  the  right  and  title  to  recover,  but  also  that  he 
had  that  right  when  he  commenced  his  action. 

General  rules. \ — In  drawing  a  complaint,  the  plain- 
tiff must  not  only  state  his  facts,  but  must  bring  in- 
to view  the  law  by  which  they  are  to  be  decided ; 
in  other  words,  tliey  must  be  such  as  in  the  law 
constitutes  a  good  cause  of  action.  In  the  language 
of  Mr.  Justice  Buller,  "  it  is  one  pf  the  first  princi- 


100  OF   THE    COMPLAINT. 

pies  of  pleading,  that  you  have  only  occasion  to 
state  facts,  which  must  he  done  for  the  purpose  of  in- 
forming the  court,  whose  duty  it  is  to  declare  the 
law  arising  on  these  facts,  and  to  apprise  the  oppo- 
site party  of  what  is  meant  to  be  proved,  in  order 
to  give  him  an  opportunity  to  traverse  it." 

Matters  of  substance  are  the  chief  elements  of 
pleading,  and  anything  that  is  material  or  essential 
10  the  plaintiff's  demand,  or  the  defendant's  dis- 
charge must  he  alleged.  The  proof  must  be  con- 
fined to  the  allegations,  and  hence  the  verdict  and 
judgment  must  be  consistent  with  the  allegations  in 
the  pleadings. 

In  stating  the  cause  of  action,  it  is  not  necessary 
to  use  any  particular  form  of  words,  nor  to  state 
anything  as  inducement  to  the  cause  of  the  action. 
And  so  of  matters  apparent  to  the  court,  and  which 
appear  from  a  necessary  implication.  It  is  not  al- 
ways necessary  to  state  title  in  the  plaintiff  to  the 
thing  sought  to  be  recovered  possession,  as  against  a 
wrong  doer,  or  a  stranger  is  enough. 

Although  the  facts  which  constitute  the  cause  of 
action  must  be  stated,  it  is  not  necessary,  and  ordi- 
narily-it  is  improper  to  state  the  evidence  to  prove  the 
facts.  Thus,  in  an  action  upon  a  promissory  note, 
the  plaintiff  liiust  state  his  title  to  the  note,  as,  that 
he  is  the  lawful  owner  of  the  note,  but  he  need  not 
state  how  he  obtained  title;  that  must  be  proved  on 
the  trial.  Or,  in  a  suit  against  an  endorser,  it  must 
be  stated  that  the  note  was  presented,  payment  de- 
manded, and  notice  of  the  presentment  and"  non- 
payment given  to  the  endorser,  but  the  manner  of 
presenting,  demanding,  and  giving  notice  need  not 
be.  Or  in  an  action  to  recover  the  possession  of  real 


OF    THE    COMPLALNT.  101 

property,  the  plaintiff's  title  must  be  stated,  as,  that 
he  is  the  owner  in  fee  of  the  lands,  but  it  need  not 
be  averred  that  he  claims  as  grantee,  devisee,  or  heir 
at  law.     He  must  prove  his  ownership  on  the  trial, 
by  the  production  of  his   deed,  or  will,  or  show  his 
inheritance.     Yet  the  plaintiff  may  aver  the  precise 
facts  which  he  expects  to  prove,  and  sometimes,  it 
is  important  to  do  so,  where  he  desires  an  admission 
fro  n  the  defendant  of  a  fact  difficult  to  prove.   Thus 
he  may  state  that  A.  B.  made  his  will  and  devised 
the  premises  in  question  to  the  plaintiff,  or  that  the 
father  of  the  plaintiff  died  intestate,  seized  of  the 
premises,  leaving  the  plaintiff  his  only  or  one  of  his 
heirs  at  law,  or  that  the  premises  were  conveyed  to 
the  plaintiff  by  deed,   stating  the  conveyance.     By 
this  means  the  defendant  must  in  his  answer  admit 
( r  deny  the  facts,  and  much  of  the   proof  may  be 
obtained   by  the    defendanfs  admission.     But  see 
Floyd  Y.  Deorhorn,  2  Code  Rep.  17. 

Conciseness  as  well  as  clearness,  is  essential  in 
stating  the  cause  of  action.  The  facts  should  be 
stated  in  the  order  in  which  they  will  be  proved. 
Thus  the  plaintiff's  title  to  the  lands  should  be  sta- 
ted before  the  wrongful  or  unlawful  possession  of 
the  defendant  is  averred;  or,  the  tortious  act  of  the 
defendant  before  the  consequent  injury  to  the  plain- 
tiff. 

It  has  already  been  stated  what  causes  of  action 
may  be  joined  in  the  same  complaint.  A?iie  p.  45. 
Care  should  be  taken  in  stating  the  cause  of  action, 
that  there  be  no  misjoinder.  Hence,  it  would  be 
improper  to  state  the  warranty  of  a  horse,  and  the 
breach  thereof,  which  is  a  contract,  and  fraud  or 
deceit  in  the  sale,  which  is  a  tort,  or  an  injury  to 


102  OF    THE    COMPLAINT. 

the  person  and  an  injury  to  property,  or  any 
causes  of  action  which  may  not  be  joined  in  the  same 
complaint. 

It  is  always,  best,  though  not  always  necessary, 
for  the  plaintiff  to  state  his  case  according  to  the 
operation  in  law,  that  is,  that  he  state  his  case  as 
it  is  in  law,  and  not  as  the  mere  words  and 
letters  are.  To  do  this,  it  is  not  only  necessary  to 
get  his  facts  right  and  fully  to  examine  the  mean- 
ino-  of  words,  but  the  operation  of  law  on  the 
words  and  facts. 

The  rule  is,  that  the  plaintiff  must  complain  ac- 
cording^ to  his  case,  and  state  his  contract,  record  or 
injury,  as  the  law  understands  it,  that  the  court  ir.ay 
be  able  to  give  legal  effect  to  the  contract. 

Time  is  not  always  necessary  to  be  stated  with 
accuracy  in  the  complaint,  as  in  an  action  for  a 
tort  any  time  within  the  limitation  of  such  actions 
may  be  stated ;  so,  of  the  place,  except  where  the 
action  is  of  a  local  nature ;  but  both  time  and 
place,  as  well  as  the  description  of  the  thing  de- 
manded should  be  stated  with  reasonable  certainty 
so  that  the  jury  may  understand  it,  and  if  the  de- 
fendant is  sued  again  for  the  same  thing,  he  may 
be  able  to  show  without  trouble  and  vexation,  that 
he  has  been  before  sued  for  the  same  cause  of  ac- 
tion. 

In  local  actions  it  must  be  stated  where  the  tand 
is  or  where  the  act  was  done  for  which  the  action 
is  brought. 

So,  when  the  plaintiff's  right  of  action  depends 
upon  a  condition  precedent,  he  must  aver  and  prove 
the  condition  to  be  performed  before  he  sues, 
whether  by  himself  or  his  agent,  unless  prevented 


OF    THE    (OMPLAINT.  103 

or  rendered  unnecessary  by  the  act  of  the  defend- 
ant. 

In  actions  on  contracts,  the  plaintiff  after  stating 
the  contract,  must  aver,  according  to  the  facts  and 
the  rules  of  law,  how  the  defendant  has  broken  it. 
Thus,  in  a  contract  to  pay  money,  a  good  breach  is 
that  he  did  not  pay,  and  generally  the  breach  of  a 
covenant  or  contract  may  be  assigned  in  the  words 
of  it. 

So,  notice  to  the  defendant  must  sometimes  be 
stated.  As,  where  a  thing  is  to  be  done  by  the 
plaintiff  or  an  event  is  to  happen  to  him,  before  the 
cause  of  action  arises,  notice  must  be  stated  to  have 
been  given  to  the  defendant 

Notliing  more  should  be  stated  in  the  complaint 
than  is  necessary  to  exhibit  to  the  court  the  nature 
of  the  cause  of  action;  redundant  and  irrelevant 
matter,  or  what  was  formerly  called  surplusage,  will 
be  stricken  out  on  motion  to  the  court.    Code,  §  160, 

Names  of  patties.] — The  party  complaining  is  known 
as  the  plaintiff,  and  the  adverse  party  as  the  defendant ; 
and  it  is  sufficient  after  entitling  the  cause  with  the 
names  of  the  parties,  to  speak  of  them  afterwards 
as  plaintiff  or  defendant.  Code,  §  70. 

Contents  of  the  complaint.'] — The  complaint  must 
contain  the  title  of  the  cause,  that  is,  the  names  of 
the  plaintiff  and  defendant,  and  the  name  of  the 
court  in  which  the  action  is  brought,  and  the  name 
of  the  county  in  which  the  plaintiff  desires  the  ac- 
tion to  be  tried.  This  of  course  will  depend  uoon 
the  nature  of  the  action,  whether  local  or  transitory. 
(As  to  which,  see  ante  p.  31.)  Code,  §  142,  siih.  1. 

It  must  also  contain  a  statement  of  the /at/^  con- 
stituting the  cause  of  action,  in  ordinary  and  con- 


104  OF    THE   COMPLAINT. 

cise  language,  without  repetition,  and  in  such  a 
manner  as  to  enable  a  person  of  common  under- 
standing to  know  what  is  intended.  Code,  §  142, 
sub.  2. 

The  particularity  with  which  these  facts  must  be 
stated,  will  depend  upon  the  nature  of  the  action, 
whether  it  be  of  a  legal  or  equitable  character,  and 
nothing  more  than  general  rules  can  be  laid  down 
to  guide  in  the  construction  of  the  complaint.  It 
is  simply  necessary  that  the  facts  should  constitute 
a  cause  of  action  In  an  action  upon  an  account, 
it  is  not  necessary  to  set  out  the  items  of  the  ac- 
count in  the  complaint,  but  it  is  sufficient  if  it  be 
stated  generally  that  the  defendant  is  indebted  to  the 
plaintiff  on  account  for  goods,  wares  and  merchan- 
dise sold  and  delivered  to  him,  or  for  work,  labor 
and  services  done  and  performed,  or  for  money  lent 
and  advanced,  without  giving  the  particular  items 
of  the  account,  a  way  being  provided  for  the  de- 
fendant to  obtain  the  items  if  he  desires  them.  Code, 
§158.     And  see  post. 

The  complaint  must  also  contain  a  demand  of  the 
relief  to  which  the  plaintiff  supposes  himself  en- 
titled. This  will  vary  according  to  the  nature  of 
the  action.  If  the  recovery  of  money  is  demanded, 
the  amount  must  be  stated ;  and  if  the  plaintiff  seeks 
relief  according  to  the  principles  of  equity,  he  must 
so  state  it,  and  demand  the  particular  relief  sought, 
that  the  court  may  render  the  appropriate  judgment 
and  make  tlie  proper  order.  Thus,  in  an  action  for 
the  foreclosure  of  a  mortgage,  the  complaint  should 
demand  the  payment  of  the  amount  due,  a  sale  of 
the   mortgaged  premises,   and   that  the  defendant 


OF  THE    COMPLAINT.  105 

and  all  others  be  barred  and  foreclosed  of  all  equity 
of  redemption.  And  where  the  plaintiff  seeks  to 
restrain  the  defendant,  durinj^  the  pendency  of  the 
action,  from  the  commission  or  continuance  of  some 
act,  and  to  obtain  an  injunction  therefor,  it  is  neces- 
sary that  the  complaint  should  contain  a  demand 
for  such  injunction.  Hovcy  v.  M'Crm,  4  How.  Pr. 
Rtp.,  31. 

It  is  provided  by  rule,  {Rule  68,)  that  in  actions  for 
the  purpose  of  obtaining  divorces  on  the  ground  of 
adultery,  whether  the  husband  or  wife  is  plaintiff, 
the  plaintiff  must  positively  aver  that  the  adultery 
charged  in  the  complaint  was  committed  without 
his  consent,  connivance,  privity,  or  procurement ; 
that  five  years  have  not  elapsed,  since  he  discover- 
ed the  fact  that  such  adidtery  had  been  committed; 
and  that  he  has  not  voluntarily  cohabited  with  the 
defendant  since  the  discovery  of  such  adultery. 
And  where,  at  the  time  of  the  offence  charged,  the 
defendant  was  married  to  or  was  living  with  the 
adulterer,  in  open  or  notorious  adultery,  the  plaintiff 
must  also  aver,  that  five  years  have  not  elapsed, 
since  the  commencement  of  such  adulterous  inter- 
course was  discovered  by  him. 

So,  in  an  action  to  avoid  a  conveyance  for  fraud, 
or  for  any  other  reason,  the  relief  asked  in  must  be 
that  the  conveyance  be  set  aside  and  cancelled,  or  for 
the  specific  performance  of  a  contract  for  the  sale  of 
lands,  that  the  vendor  or  his  heirs  convey  the  pre- 
mises, or  for  the  recovery  of  personal  property,  that 
it  be  delivered  to  the  plaintiff. 

In  these  and  similar  cases,  the  specific  relief  de- 
manded must  be  stated  in  the  comf)laint. 


106  OF    THE    COMPLAINT. 

Subscribing  complaint.'] — The  complaint  must  be 
.•subscribed  by  the  plaintiff,  if  he  sues  in  person,  or 
by  his  attorney  If  this  is  omitted  it  would  be  an 
irregularity  and  the  court  would  set  it  aside,  or 
mi^-ht  allow  it  to  be  amended. 

Verifying  the  complaint.] — The  plaintiff  may  verify 
the  complaint,  or  not  as  he  chooses.  The  verifica- 
tion is  by  an  affidavit,  annexed  to  the  complaint, 
that  the  complaint  is  true  of  his  own  knowledge, 
except  as  to  the  raatlers  which  are  therein  stated  to 
be  on  his  information  or  belief,  and  as  to  those 
matters  he  believes  it  to  be  true. 

There  is,  however,  one  case  in  which  the  plaintiff 
must  verify  his  complaint,  viz.,  where  it  is  intended 
to  save  a  cause  of  action  from  the  operation  of  the 
statute  of  limitations.  In  such  case,  unless  the 
summons  can  be  delivered  to  the  sheriff  on  the  day 
it  is  issued,  if  it  is  designed  to  commence  the  suit 
on  such  day,  the  complaint  must  be  verified.  To 
illustrate :  the  statute  of  limitations  will  attach  to- 
morrow, and  hence,  to  save  it,  the  suit  must  be 
commenced  tr-day.  Now,  if  the  plaintiff  can  get 
his  summons  in  the  hands  of  the  sheriff  to-da,y,  it 
is  enough,  and  the  complaint  need  not  be  verified  : 
but,  if  from  any  cause,  the  summons  cannot  be  de- 
livered to  the  sherift'  to-day,  the  plaintift^  may,  by 
verifying  his  complaint,  save  the  statute,  provided 
he  within  the  next  five  succeeding  days,  deliver  the 
summons  to  the  sh^^riff,  and  it  be  thereafter  actually 
served.  Code,  §  99,  sub.  2. 

Another  case,  in  which  it  is  proper  to  verify  the 
complaint,  is  in  an  action  to  obtain  a  divorce,  on 
the  ground  of  adultery,  where  it  is  provided  by  rule 


OF    THE    COMPLAINT.  107 

that  the  complaint  must  be  verified,  or  an  affidavit 
of  the  facts  furnished  on  the  reference   Rule  68. 

Generally,  the  affidavit  must  be  made  by  the 
plaintiff,  but  it  may,  in  certain  cases,  be  made  by 
his  attorney  or  by  any  other  person.  Thus,  if  the 
party  is  absent  from  the  county  Avhere  the  attorney 
resides,  or  from  some  cause  is  unable  to  verify  it, 
or  where  the  facts  are  within  the  knowledge  of  his 
attorney,  or  of  the  person  verifying  the  same. 

If  the  affidavit  is  made  by  the  a'torney,  or  by  a 
person  other   than  the  plaintiff,    it  must    state   the 
grounds  of  his  knowledge  or  belief  on  the  subject, 
and  the  reasons  why  it  is  not  made  by  the  plaintiff. 
Thus,   where   the   attorney  verified    the  answer, 
and    swore    to  information    furnished   him  by  the 
defendant,  and  from  his  representatiyns,  he  believed 
the  answer  to  be  true,  it  was  held  sufficient.  Dixwell 
V.  Wordsworth,  2  Code  R' p.,  1.     It  would  be  well  in 
cases  of  attorney's  verifying  a  pleading  and  swear- 
ing to  information  derived  from  the  party,  to  add, 
that  he  believes  such  information  to  be  true.     The 
sufficiency  of  the  grounds  and  the  reason,  is  for  the 
cotirts  to  determine.     It  is,  however,  no  ground  of 
demurrer.    Webb  v.  Clark,  2  Code  Rpp.,  16.     When  a 
corporation  is  a  party,  the  verification  maybe  made 
by  any  officer  thereof 

The  plaintiff  need  not,  as  has  been  said,  verify 
his  complaint  except  in  the  cases  which  have  been 
stated,  and  the  only  effect  of  omitting  to  do  so,  is 
to  waive  the  oath  to  the  answer.  And  in  cases 
where  the  plaintiff  does  not  desire  the  defendant's 
answer  to  be  under  oath,  he  may  avoid  it  by  omit- 
ting  to  verify  the   complaint.     If  the   complaint, 


108  OF   THE    COMPLAINT. 

however,  is  verified,  then  the  answer  and  reply  must 
also  be  verified  in  the  same  manner. 

Amending  complaint.^ — We  have  before  noticed  the 
cases  in  which  amendn  ents  are  allowed,  by  the 
Code.    Antep.  41. 

Ail  the  provisions  there  referred  to,  apply  to 
amendments  of  the  complaint.  The  amendments 
which  maybe  made  of  course,  that  is,  without  mo- 
tion to  the  court,  must  be  made  within  twenty  days 
after  the  service  of  the  demurrer  or  answer,  and 
before  the  plaintiff  has  replied;  otherwise  he  must 
make  a  special  motion  to  the  court  for  leave  to 
amend.  And  a  copy  of  the  amended  complaint 
must  be  served  on  the  defendant  or  his  attorney,  if 
he  has  appeared  by  one.  The  defendant  has  the 
same  time  to  answer  or  demur  to  the  amended 
complaint  that  he  had  in  the  first  instance  to  the 
original  complaint,  that  is  tw^enty  days. 

It  has  been  decided  in  the  N.  Y.  Superior  Court, 
that  Avhere  two  of  the  defendants  demurred  to  the 
complaint,  and  the  other  defendant  suffered  judg- 
ment for  want  of  an  answer,  and  the  plaintift^  after- 
wards amended  his  complaint,  that  it  was  necessary 
to  serve  the  amended  complaint  upon  the  defendant 
who  had  suffered  judgment  as  well  as  upon  the  de- 
fendants who  had  demurred.  People  ex.  rel.  Ru?nsey 
v.  Woods  Sf  ors.  2  Code  Rep.,  18. 

Supplemaital  complaint.'] — If  facts  arise  after  the 
complaint  has  been  served,  or  after  answer  or  reply 
has  been  put  in,  the  plaintiff  may  bring  it  before 
the  court,  by  a  supplemental  complaint.  This  is 
authorized  only  in  cases  where  new  facts  arise,  and 
they   must   occur   after   the   complaint   has    been 


OF    THE   COMPLAINT.  109 

served.  For  if  they  have  occurred  before  the  c  m- 
plaint  is  made  out,  they  must  be  brought  in  by 
amending  the  complaint ;  not  by  a  supplemental 
complaint. 

A  supplemental  complaint,  cannot  be  put  in  as 
of  course,  it  can  only  be  done  upon  the  order  of 
the  court,  for  which  purpose  a  motion  must  be  made 
upon  an  affidavit  of  the  facts  rendering  the  supple- 
ment necessary.  The  court  may  impose  the  pay- 
ment of  such  costs  as  shall  be  just,  as  a  condition  of 
allowing  the  supplemental  complaint  to  be  made. 
Code,  §  177. 

Filing  complaint. 1 — It  is  not  absolutely  necessary  to 
file  the  complaint,  though  it  is  always  best  to  do 
so,  immediately  after  the  summons  has  been  served 
on  the  defendant.  If  it  be  not  filed  within  ten 
days  after  it  is  served,  the  defendant,  upon  an  affi- 
davit of  the  omission,  may  have  an  order  of  course 
from  a  judge  of  the  court  in  which  the  action  is 
pending  requiring  the  complaint  to  be  filed  within 
a  time  to  be  specified  in  the  order,  and  if  the  plain- 
tiff neglect  to  file  it  within  such  time,  he  will  be 
deemed  to  have  abandoned  his  complaint.  Code, 
§  416. 

The  complaint  must  be  filed  in  the  office  of  the 
clerk  of  the  county  designated  in  the  complaint  for 
the  trial  of  the  action,  and  must  in  all  cases  be  filed 
before  judgment  is  entered  in  the  action. 

And  in  cases  where  the  summons  is  served  by 
publication,  the  complaint  must  be  filed  in  the 
proper  county  before  the  order  for  publication  is 
made.     Code,  §  135,  sub.  6. 

If  the  complaint  contains  more  than  two  folio,  it 


110     FILING  AND  SERVING  SUMMONS  AND  COMPLAINT. 

is  the  duty  of  the  attorney  to  distinctly  number  and 
maik  eacli  folio  in  the  margin  thereof,  and  all  co- 
pies either  for  the  parties  or  the  court  must  be  num- 
ber :d  or  marked  in  th ;  margin,  so  as  to  conform  to 
the  original  draft.  Rvh  44. 

SECTION  VIII. 

Of  the  Filing  and  Service  of  the  Summons  and  Com- 
plaint, AND  OF  the  Proof  of  Sevice. 

The  summons  must  in  all  cases  be  served  upon 
the  defendant,  either  personally  or  by  publication. 
Not  so,  however  with  the  complaint.  There  are 
cases  in  which  the  complaint  need  not  be  served  at 
all. 

The  service  of  the  summons  is  usually  accompa- 
nied by  a  copy  of  the  complaint,  that  being  proper, 
though  not  necessary,  to  avoid  the  delay  of  a  de- 
mand by  the  defendant,  and  in  cases  where  it  is 
thus  deemed  advisable  to  serve  the  copy  com- 
plaint, it  is  proper  to  annex  it  to  the  summons,  and 
have  them  served  on  the  defendant  at  the  same 
time,  and  in  practice,  this  will  generally  be  done. 

When  service  of  the  complaint  is  proper. '\ — As  has  been 
stated,  a  copy  of  the  complaint  need  not  be  served 
upon  the  defendant,  with  the  summons;  but  ordi- 
narily, except  in  mortgage  cases,  it  is  best  to  serve 
the  copy  complaint  with  the  summons,  as  other- 
wise the  defendant  may  gain  Xen  days  additional 
time,  by  waiting  ten  days  after  the  service  of  the 
summons  and  then  demanding  a  copy  of  the  com- 
plaint, and  thus  has  twenty  days  after  its  service  on 
him  to  serve  his  answer,  as  post. 


FILING  AND  SERVING  SUMMONS  AND  COMPLAINT.       1  I  1 

The  summons  and  copy  of  the  complaint,  if  serv- 
ed, must  be  personally  served  upon  the  defendant. 
This  is  necessary  to  give  jurisdiction  to  the  court, 
and  a  judgment  would  be  erroneous  without  such 
service. 

Where  the  complaint  is  not  served  with  the  sum- 
mons, it  must  state  where  the  complaint  will  be 
hied.  If  the  defendant.s,  or  either  of  them,  desire 
to  know  what  he  is  sued  for,  or  design  to  defend  the 
action,  he  may,  within  ten  days  after  the  service  of 
the  summons  upon  him,  serve  upon  the  plaintiff's 
attorney  a  notice  in  writing,  demanding  a  copy  of 
the  complaint.  In  this  notice,  the  defendant  must 
specify  some  place  within  this  State,  for  the  service 
of  the  complaint  upon  him  The  plaintift^nust  serve 
a  copy  of  the  complaint  upon  the  defendant  accord- 
ingly, from  which  time  the  defendant  has  twenty 
days  to  demur  or  answer,  as  in  other  cases.  If, 
however,  two  or  mo/e  defendants  in  such  a  case  ap- 
pear by  one  attorney,  only  one  copy  of  the  com- 
plaint need  be  served.     Code,  §  130. 

In  mortgage  and  partition  cases.^ — In  case  the  plain- 
tiff makes  no  personal  claim  against  a  defendant  in 
an  action  for  the  foreclosure  of  a  mortgage  or  the  par- 
tition of  lands,  such  as  defendants  who  are  mere 
judgment  creditors,  or  junior  incumbrancers,  a  copy 
of  the  complaint  need  not  be  served  upon  such  de- 
fendant. But  at  the  time  of  the  service  of  the  sum- 
mons, the  plaintiff  must  delivej  to  such  defendant 
a  notice,  subscribed  by  the  plaintiff  or  his  attorney, 
setting  forth  the  general  object  of  the  action,  with  a 
brief  description  of  the  property  affected  by  it,  and 
that  no  personal  claim  is  made  against  him.     If  a 


112  SERVLNfG    SUMMONS    AND    COMPLAINT. 

defendant  upon  whom  a  summons  and  notice  in  an 
action  for  the  foreclosure  of  a  mortgage  or  the  par- 
tition of  lands  is  served  desire  to  defend,  he  may  de- 
mand in  writing  a  copy  of  the  complaint,  at  any 
time  before  the  time  for  answering  expires ;  in  which 
case  a  copy  must  be  served,  and  such  defendant 
must  answer  within  the  time  specified  for  that  pur- 
pose in  the  summons,  and  is  not  allowed  twenty 
days  from  the  time  of  the  service  of  the  complaint. 

Service,  how  made.] — The  service  of  the  summons 
and  complaint,  when  served,  must  be  made  as  fol- 
lows : 

Upon  corporations.'] — By  delivering  a  copy  of  the 
summons  and  complaint  to  the  president  or  other 
head  of  the  corporation,  or  to  the  secretary  or  cashier, 
or  managing  agent  thereof 

Upon  minors.] — If  the  minor  is  over  the  age  of  four- 
teen years,  by  delivering  such  copy  to  such  minor 
personally — and  if  under  the  age  of  fourteen,  by  de- 
livering the  same  to  such  minor  personally,  and  also 
delivering  a  copy  to  the  father  or  mother  or  guar- 
dian, or  if  there  be  none  within  this  state,  then  by 
delivering  the  same  to  any  person,  having  the  care 
and  control  of  such  minor,  or  with  whom  he  resides, 
or  in  whose  service  he  shall  be  employed. 

Upon  idiots,  insane  persons  and  habitual  drunkards.] — 
If  the  defendant  be  a  person  judicially  declared  to 
be  of  unsound  mind,  or  incapable  of  conducting  his 
own  affairs,  in  consequence  of  habitual  drunkenness, 
and  for  whom  a  committee  has  been  appointed,  the 
copy  of  the  summons  and  complaint  must  be  deliv- 
ered to  such   defendant  and  to   his  committee  per- 


SERVING    SUMMONS  AND  COMPLAINT.  1  I  3 

sonally.  In  all  other  cases  the  service  must  be  by- 
delivering  the  copy  to  the  defendant  personally. 

Upon  non-resident  or  concealed  defendant.] — Where  the 
defendant  upon  whom  the  service  is  to  be  made,  is 
a  non-resident  of  this  state  or  cannot,  after  due  dili- 
gence, be  found  within  the  state,  the  court  in  Avhich 
the  action  is  pending,  or  a  judge  thereof,  or  a  county 
judge,  may  order  the  summons  to  be  served  by  a 
publication  of  the  summons,  in  lieu  of  personal  ser- 
vice. Code,  §  135,  sub.  3. 

Affidavit  of  the  facts.] — To  procure  the  order  for 
publication,  an  affidavit  must  be  drawn,  stating  the 
non-residence  of  the  defendant,  or  that  the  defend- 
ant cannot,  after  due  diligence,  be  found  within  the 
state.  The  affidavit  must  show  conclusively  that 
the  defendant  is  a  non-resident,  or  that  an  effort  has 
been  made  to  serve  the  summons.  Mere  informa- 
tion and  belief  of  non-residence,  or  that  the  defend- 
ant cannot  be  found,  is  not  enough.  The  court  or 
judge  must  be  satisfied  by  the  facts  disclosed  in  the 
affidavit,  that  it  is  a  proper  case  for  publication. 
The  affidavit  must  also  state  the  cause  of  action, 
that  the  court  or  judge  may  know  that  a  sufficient 
cause  of  action  exists  against  the  defendant.  And 
in  actions  relating  to  real  property,  it  must  appear 
from  the  affidavit  that  the  defendant  is  a  necessary 
party  to  the  action.  If  the  residence  of  the  defend- 
ant is  not  known,  and  cannot  with  reasonable  dili- 
gence be  ascertained,  that  fact  should  aho  be  stated 
in  the  affidavit. 

The  affidavit  should  also  state  that  the  complaint 
has  been  filed  in  the  proper  county,  as  that  must  be 

8 


114  SERVING    SUMMONS    AND    COMPLAINT. 

done  before  the  order  for  piibUcation  can  be  made. 
Code,  §  135. 

When  these  facts  appear,  the  court  or  judge  is 
authorized  to  make  an  order  that  the  i^ervice  be 
made  by  the  publication  of  the  summons,  in  the 
following  cases.  Code,  §  135. 

(1.)  Where  the  defendant  is  a  foreign  corporation: 

(2)  Where  the  defendant,  being  a  resident  of  this 
state,  has  departed  therefrom  with  intent  to  defraud 
his  creditors,  or  avoid  the  service  of  a  summons,  or 
keeps  himself  coneealed  therein,  with  the  like  in- 
tent, and  the  action  arises  out  of  contract  or  the  non- 
feasance or  mis- feasance  complained  of,  is  a  breach 
of  contract: 

(3.)  Where  hens  a  non-resident,  but  has  property 
therein,  and  the  action  is  on  a  contract : 

(4.)  AVhere  the  subject  of  the  action  is  real  pro- 
perty in  this  state  and  the  defendant  has  or  claims 
alienor  interest  actual  or  contingent  therein,  or  the 
relief  demanded  consists  wholly  or  partly  in  ex- 
cluding the  defendant  from  any  interest  therein: 

(5.)  Where  the  action  is  founded  on  a  mortgage 
upon  property  in  this  state,  and  the  defendant  is, 
by  reason  of  an  instrument  executed  by  him,  charge- 
able with  the  debt  for  which  the  mortgage  is  secu- 
rity: 

(G.)  Where  the  action  is  for  divorce,  in  the  cases 

provided  by  law. 

The  orc/er.]— The  order  must  direct  the  summons 
to  be  published  in  at  least  two  newspapers,  of  which 
the  state  paper  should  be  one,  though  it  need  not 
be;  the  other,  such  as  shall  be  designated  by  the 
court  or  judge  as  most  likely  to  give  notice  to  the 


SERVING  SUMMONS  AND   COMPLAINT.  115 

person  to  be  served.  The  complaint  need  not  be 
published.  Anonymous,  3  How.  Pr.  R.,  293.  The 
order  must  require  the  summons  to  be  published  for 
such  length  of  time  as  the  judge  shall  deem  reason- 
able, but  in  no  case,  shall  it  be  less  than  once  in 
each  week  for  six  weeks. 

The  order  must  further  direct  that  a  copy  of  the 
summons  and  complaint  be  forthwith  deposited  in 
the  post  office,  directed  to  the  person  to  be  served, 
at  his  place  of  residence.  If,  however,  it  appears 
from  the  affidavit  that  the  residence  of  the  defend- 
ant is  not  known  to  the  plaintifi,  and  cannot,  with 
reasonable  diligence,  be  ascertained  by  him,  this 
part  of  the  order  may  be  omitted. 

Filing.] — The  order  and  affidavit  upon  which  it  is 
founded,  should  be  filed  with  the  clerk  of  the  county 
designated  in  the  complaint  for  the  trial  of  the 
action.  The  publication  of  the  summons  and  de- 
posit in  the  post  office  may  then  be  made  pursuant 
to  the  order. 

The  summons  in  cases  of  publication  must  state 
the  time  when  and  the  place  where  the  complaint 
is  filed. 

Service  out  of  the  state.] — Notwithstanding  the  order 
for  publication,  the  plaintiff  may  still  make  a  per- 
sonal service  upon  the  defendant,  either  in  or  out  of 
the  state,  and  such  service  is  equivalent  to  publica- 
tion and  deposit  in  the  post  office. 

In  such  cases,  however,  the  complaint  need  not 
be  served,  the  service  of  the  summons  alone  is  suffi- 
cient. The  defendant  has  the  same  time  to  appear 
and  answer  as  in  case  of  publication.  Code,  §  135, 
sub.  6. 


116  SERVING  SUMMONS   AND   COMPLAINT. 

Defendant's  appearance  and  answer.] — If  the  defend- 
ant is  apprised  of  the  commencement  of  the  action, 
either  by  receipt  of  the  summons,  or  by  seeing  the 
publication,  he  must  apply  to  the  clerk  of  the  coun- 
ty, designated  in  the  summons  as  the  place  where 
the  complaint  is  filed,  for  a  copy  of  the  complaint, 
and  must  serve  hi:i  answer  upon  the  plaintiff's  attor- 
ney within  twenty  days  f  om  the  time  limited  for 
the  publication  of  the  summons.  If,  however,  the 
summons  is  not  served  on,  nor  received  by  the  de- 
fendant through  the  post  office,  he  or  his  represen- 
tatives may  apply  to  the  court  in  which  the  action 
is  pending,  at  any  time  before  judgment  is  actually 
entered,  for  liberty  to  defend  the  action,  and  he  will 
be  allowed  to  do  so,  without  the  payment  of  any 
costs,  if  he  show  a  sufficient  reason  for  not  answer- 
ing in  season,  and  that  he  has  a  valid  defence  on 
the  merits,  to  the  action.  The  defendant  may  in 
like  manner  apply  to  the  court,  within  one  year 
after  he  has  received  notice  of  the  judgment,  but 
not  after  the  expiration  of  seven  years  from  its  ren- 
dition, for  liberty  to  defend  the  action ;  and  the 
court  may  allow  him  to  do  so,  upon  such  terms  as 
are  just.  And  if  upon  being  allowed  to  defend,  his 
defence  is  successful,  and  the  judgment,  or  any  part, 
has  been  collected,  or  otherwise  enforced,  such  res- 
titution may  be  compelled  as  the  court  may  direct. 

In  cases  where  the  service  is  made  by  publication, 
the  service  is  complete  at  the  expiration  of  the  time 
mentioned  in  the  order  for  publication.  If  the  de- 
fendant do  not  appear  within  that  time  and  answer 
or  demur,  the  plaintiff  may,  at  the  expiration  of 
twenty  days  thereafter,  enter  judgment. 


SERVING  SUxMMONS    AND  COMPLAINT.  117 

The  defendant  has  twenty  days  after  the  expira- 
tion of  the  time  for  publication,  to  serve  his  answer, 
and  hence  judgment  cannot  be  entered  for  failure  to 
answer,  until  after  twenty  days  from  the  expiration 
of  the  publication. 

Service  upon  some,  but  not  upon  all  the  defendants.] — 
In  cases  where  the  plaintiff  gives  notice  in  his  sum- 
mons that  he  will  apply  to  the  court  for  the  relief 
demanded  in  his  complaint,  and  he  wishes  a  joint 
judgmenf  against  all  the  defendants,  he  must  pro- 
cure the  service  of  the  summons  on  all,  before  he 
applies  to  the  court  for  his  relief. 

If  the  action  be  against  two  or  more  defendants, 
who  are  jointly  indebted  upon  a  contract,  and  the 
summons  and  complaint  has  been  served  upon  one 
or  more,  but  not  upon  all  of  them,  the  plaintiff  may 
proceed  against  the  defendant  served,  without 
serving  upon  the  others.  The  judgment  in  such 
a  case  will  be  in  form  against  all  the  defend- 
ants, as  joint  contractors,  but  it  can  only  be  collect- 
ed from  \hejoi?it  property  of  all,  or  the  individual 
property  of  those  served.  {2  R.S.  247,  §  122,  123. 
Code  §  136,  sub.  1.)  The  execution  in  such  case  must 
direct  the  sherifi^to  collect  the  judgment  according- 
ly. (2  R.  S.  250,  §  141,142.  Laws  1833,  chap.  271,  §  3.) 

In  actions  against  defendants  severally  liable,  as 
makers  and  endorsers  of  promissory  notes,  draw- 
ers, acceptors,  and  endorsers  of  bills  of  exchange, 
the  plaintiff  may  proceed  against  such  as  have  been 
served,  without  waiting  to  serve  en  all.  This  wa? 
what  under  the  former  practice,  was  called  severing 
the  action. 

In  like  manner,  if  all  the  defendants  are  served 


118  SERVING    SUMMONS    AND    COMPLAINT 

and  soiTie  answer  and  others  do  not,  the  phiintifF 
may,  if  the  defendants  are  severally,  but  not  if  they 
are  jointly  liable,  proceed  to  judgment  against 
such  as  do  not  answer,  and  to  trial  against  such  as 
do  answer. 

And  if  the  defendants  are  severally  liable,  and  the 
summons  has  not  been  served  on  all,  the  plaintiff 
may  amend  his  complaint,  by  striking  out  the  names 
of  such  of  the  defendants  as  have  not  been  served, 
and  proceed  against  the  defendants  served. 

Who  may  serve  the  summons.'] — The  summons  and 
complaint  may  be  served  by  the  sheriff  of  the  coun- 
ty where  the  defendant  may  be  found,  or  by  any 
person,  not  a  party  to  the  action.  The  plaintiff  can- 
not, nor  can  one  of  several  plaintiffs  make  the 
service.  The  plaintiff  or  his  attorney,  who  issues 
the  summons,  may  fix  the  time,  within  which  the 
service  must  be  made.  This  is  done  by  an  endorse- 
ment on  the  summons,  and  the  service  must  be 
made  accordingly.  The  sheriff  or  person  who  makes 
the  service  is  required  to  return  the  original  sum- 
mons with  the  proof  of  the  service  to  the  plaintiff's 
attorney,  or  to  the  plaintiff  if  he  prosecute  in  person, 
with  all  reasonable  diligence. 

In  case  the  service  is  made  by  the  sheriff,  if  he 
omit  to  make  the  return  within  the  time  limited,  or 
within  a  reasonable  time,  if  there  be  no  limitation, 
he  may  be  proceeded  against  by  attachment  as  for 
a  contempt  of  court.  (10  Wend.  JR.  572.  Laws  1833, 
chap.  271,  §  2.    Rule  6.) 

Of  proof  of  serviced] — If  the  service  is  made  by  the 
sheriff,  or  other  public  officer,  his  official  certificate 
in  writing  must  be  made  of  the  time  and  manner  of 


SERVING    SUMMONS    AND    COMPLAINT.  119 

service  j  or  if  it  be  made  by  a  person  other  than  the 
sheriff  or  pubUc  officer,   an   affidavit  is  necessary. 
The  certificate  and  affidavit  must  state  the  precise 
time  of  the  service,  and  that  it  was  made  upon  the 
defendant  personally.     It  must  also  state  the  place 
where  the  service  was  made,   that  is,  the  town  or 
city.     The  particular  house  need  not  be  stated ;  the 
object  being  to  show   that  the   service  was  made 
Avithin  the  state  or  the  bailwick  or  county  of  the 
sheriff.     In  addition  to  this,  if  the  summons  is  served 
by  a  person  other  th  in  the  sheriff,  the  affidavit  must 
also  state,  that  the  person  making  the  service,  knew 
the  person  served  to  be  the  person  mentioned  and 
described  in  the  summons,  as  defendant  therein,  and 
also  state,  whether  he  left  with  the  defendant  such 
copy,  as  well  as  delivered  it  to  him.    Rule  90. 

If  the  service  be  made  by  publication  the  affida- 
vit of  the  printer  or  his  foreman,  or  his  principal 
clerk,  of  the  several  newspapers,  in  which  the  sum- 
mons was  published,  must  be  made,  showing  the 
publication;  and  also  an  affidavit  of  the  person 
who  deposited  a  copy  of  the  summons  in  the  post 
office,  as  required  by  the  order  of  publication,  if  so 
required.  These  affidavits  must  state  the  time 
when  the  publication  commenced,  and  when  end- 
ed, and  the  time  when  the  copy  summons  Avas  de- 
posited in  the  post  office,  with  the  name  of  the  post 
office,  and  where  the  same  was  directed  to  the  de- 
fendant. 

The  written  admission  of  the  defendant  will  be 
sufficient  proof  of  the  service,  without  any  certifi- 
cate or  affidavit.     Code,  \  138. 


120  JUDGMENT   UPON    FAILURE    TO    ANSWER. 

SECTION  IX. 

Of  the  Judgment  upon  Failure  to  answer. 

Under  the  former  practice,  if  the  defendant  did 
not  plead  to  the  declaration  within  the  time  prescri- 
bed, the  plaintiff  entered  his  default  and  signed 
judgment,  according  to  the  nature  of  his  claim  or 
relief  demanded. 

A  similar  practice  now  prevails  under  the  Code 
There  are,  however,  some  variations  rendered  ne- 
cessary by  the  change  of  the  system,  and  in  blend- 
ing actions  of  a  legal  and  equitable  nature  into  one. 
Defaults  are  altogether  abolished. 

A  judgment  is  the  final  determination  of  the 
rights  of  the  parties  in  the  action,  and  by  the  de- 
fendant's failing  to  answer  the  complaint,  he  ad- 
mits the  cause  of  action  as  laid,  and  the  case  is  in 
a  condition  to  be  finally  determined.     Code,  §  245. 

As  judgments  generally  are  treated  of  in  another 
part  of  this  work,  the  present  section  will  be  con- 
fined to  those  that  may  be  entered  for  want  of  an 
answer  only. 

Actions  arising  on  contract  for  the  recovery  of  money 
only.]  If  the  action  be  founded  upon  a  contract, 
express  or  implied,  for  the  recovery  of  money  only, 
and  the  defendant  has  failed  to  serve  an  answer  or 
demurrer,  the  plaintiff  may,  after  the  expiration  of 
the  time  limited  for  the  answer,  enter  a  judgment 
for  the  amount  mentioned  in  the  summons  with  in- 
terest and  costs,  but  it  cannot  exceed  such  an 
amount.     Code,  §  275. 

In  cases  where  an  assessment  is  required,  as  here- 


JUDGMENT   UPON    FAILURE    TO   ANSWER.  121 

after  stated,  and  the  defendant  has  served  notice  of 
appearance,  either  in  person  or  by  attorney,  upon 
the  plaintiff's  attorney,  at  any  time  before  the  peri- 
od for  answering  has  expired,  a  notice  of  five  d.iys 
must  be  served  on  such  defendant  or  his  attorney, 
stating  the  time  and  place  where,  and  the  name  of 
the  clerk  by  whom  the  assessment  v/ill  be  made. 
No  notice  is  necessary  unless  the  defendant  has  ap- 
peared.    Code,  §  246,  sub.  1. 

In  actions  where  the  service  of  the  summons  and 
complaint  is  not  personal,  as  in  the  case  of  publica- 
tion against  a  defendant,  who  is  a  non-resident  or 
cannot  be  found,  the  plaintiff  at  the  time  he  applies 
for  the  judgment  or  relief  demanded  in  his  com- 
plaint, must  furnish  proof  of  his  demand  to  the 
court,  and  in  case  the  defendant  is  a  non-resident, 
the  court  must  examine  the  plaintiff  or  his  agent, 
on  oath,  as  to  any  payments  that  have  been  made 
to  the  plaintiff,  or  to  any  one  to  his  use  on  account 
of  his  demand.  The  court  may,  for  the  purpose 
of  taking  this  proof,  order  a  reference,  and  upon 
the  coining  in  of  the  report  of  the  refei-ees,  direct 
the  proper  judgment  to  be  entered.  The  court  may 
also  in  its  discretion,  require  the  plaintiff  to  file  sa- 
tisfactory security  to  abide  the  order  of  the  court, 
touching  the  restitution  of  any  estate  or  effects 
which  may  be  directed  by  the  jutigment  to  be  trans- 
ferred or  delivered,  or  the  restitution  of  any  money 
that  may  be  collected,  under  or  'by  virtue  of  such 
judgment,  in  case  the  defendant  or  his  representa- 
tives shall  apply  and  be  admitted  afterwards  to  de- 
fend the  action.    Code,  §246,  sub.  3. 

It  seems  that  even  in  actions  founded  upon  con- 
tracts, either  express  or  implied,   and  the  summons 


122  JUDGMENT    UPON    FAILURE    TO    ANSWER. 

has  not  been  personally  seved,  the  plaintiff  cannot 
enter  judgment,  as  of  course,  but  must  make  an 
application  to  the  court  for  judgment.  It  is  other- 
wise when  the  sunimons  has  been  personally  served. 
Cod.e,  \  246,  sub.  3. 

Ill  other  actions^ — If  the  action  be  one  not  founded 
upon  contract  for  the  payment  of  money  only,  and 
the  defendant  has  in  like  manner  failed  to  answer, 
the  plaintiff  may,  in  like  manner,  apply  to  the  court 
on  any  motion  day  in  any  special  term,  in  the  judi- 
cial district  embracing  the  county  designated  in  the 
complaint  for  the  trial  of  the  action,  or  in  an  ad- 
joining county,  or  at  any  circuit  court  held  in  such 
county,  {Rule  91)  for  the  judgment  or  relief  he  may 
be  entitled  to.  In  case  the  defendant  has  served 
notice  of  appearance  or  retainer,  {Ride  7)  either  in 
person  or  by  attorney,  a  notice  of  eight  days  must  be 
served  on  him,  of  the  time  and  place  where  the  ap- 
plication for  the  judgment  or  relief  demanded  in 
the  complaint  will  be  made.  The  defendant  is  not 
entitled  to  any  notice  unles  she  has  appeared.  Code, 
§246,  sub.  2. 

In  many  cases  it  is  necessary  to  furnish  further 
evidence  than  is  contained  in  the  complaint,  before 
the  court  can  direct  the  judgment  to  be  entered,  as 
where  damages  are  claimed  for  the  withholding  of 
money  in  an  action  for  the  recovery  of  money  only, 
or  for  the  withholding  of  real  or  personal  property, 
or  where  an  account  must  be  taken,  or  the  exami- 
nation of  a  long  account  is  involved,  or  any  case 
where  further  proof  is  necessary  to  enable  the  court 
to  give  judgment,  or  to  carry  the  judgment  into  ef- 
fect, the  court  instead  of  taking  the  proof,  may  in 


JUDGMENT    UPON    FAILURE    TO    ANSWER.  12C 

its  discretion  order  a  reference  for  that  purpose,  tc 
some  person  free  irorn  all  exception,  to  be  namec 
by  the  plaintiff;  or  may  direct  a  writ  of  inquiry  t( 
issue  to  the  sheriff,  or  order  the  damages  to  be  as 
sessed  by  a  jury. 

In  these  cases  the  proper  order  is  entered  and  the 
plaintiff  proceeds  to  give  his  proof  before  the  re- 
feree or  jury,  and  after  obtaining  the  report  or  ver- 
dict, he  is  in  a  condition  to  enter  judgment ;  which 
he  may  do  without  further  motion  to  the  court,  or 
notice  to  the  defendant.  If  o  notice  of  the  reference 
or  of  executing  the  writ  of  inquiry,  need  be  given 
to  the  defendant. 

Manner  of  entering  judgment.^ — An  affidavit  must  be 
drawn  that  no  answer  has  been  received,  and  the 
affidavit,  summons  and  complaint,  with  the  proof  of 
service,  must  be  filed  with  the  clerk  of  the  county 
designated  in  the  complaint  for  the  place  of  trial, 
together  with  the  report  of  the  referee  or  clerk,  or 
verdict  of  the  jury,  if  any,  and  a  copy  of  the  judg- 
ment. 

If  the  complaint  has  not  been  verified,  and  the  ac- 
tion is  on  an  instrument  for  the  payment  of  money 
only,  such  as  a  promissory  note,  bill  of  exchange, 
check,  bond,  and  the  like,  the  plaintiff  before  he  en- 
ters judgment,  must  produce  the  instrument  to  the 
clerk,  who  will  assess  the  amount  due  thereon,  make 
a  report  and  file  the  s;ime. 

In  other  actions,  where  it  is  necessary  to  ascer- 
tain by  ah  assessment,  the  amount  for  which  to  en- 
ter judgment,  and  where  the  complaint  has  not  been 
verified,  the  clerk  may  assess  and  ascertain  the 
amount  which  the  plaintiff  is  entitled  to  recover,  by 


124  JUDGMENT  UPON  FAILURE  TO    ANSWER. 

an  exaaiination  of  the  plaintiff  under  oath,  or  by 
such  other  legal  and  competent  proof,  as  the  plain- 
tiff may  furnish.  Thus  in  an  action  for  goods  sold 
and  delivered,  the  clerk  may  examine  the  plaintiff's 
clerk  as  to  the  sale  and  delivery,  and  the  value  of 
the  goods  sold.  As  we  have  seen  in  all  cases  of  as- 
sessment by  the  clerk,  if  the  defendant  has  appear- 
ed, he  is  entitled  to  five  days'  notice,  of  the  time 
and  place  of  the  assessment. 

The  judgment  is  a  brief  statement  of  the  amount 
mentioned  in  the  summons,  and  the  interest  thereon 
to  the  time  of  entering  judgment,  orof  the  relief  de- 
manded, with  the  amount  of  costs  and  disburse- 
ments to  which  the  plaintiff  is  entitled  bylaw.  The 
judgment  or  relief,  cannot  be  greater  than  that  de- 
manded in  the  complaint.     Code  §  275. 

If  the  defendant  has  appeared,  a  copy  of  the  costs 
and  disbursements,  which  the  plaintiff  claims  to 
have  inserted  in  the  judgment,  must  be  served  on 
the  defendant's  attorney  with  two  days'  notice  of  the 
time  and  place,  when  and  where,  and  the  name  of 
the  clerk  to  whom  the  plaintiff  will  apply  to  have  his 
costs  ioserted  in  the  entry  of  judgment. 

The  disbursements  must  be  stated  in  detail  and 
verified  by  affidavit,  which  must  be  filed. 

Judgment  roll.] — Upon  entering  the  judgment,  the 
clerk  must  immediately  attach  together  the  sum- 
mons, complaint  or  copies  thereof,  the  proof  of  ser- 
vice, and  the  affidavit  that  no  answer  has  been  re- 
ceived, the  report  of  the  referee,  and  the  verdict  of 
the  jury,  if  any,  and  a  copy  of  the  judgment,  and  file 
them  in  his  office.  This  becomes  the  judgment  roll. 
For  the  manner  of  entering  judgment  and  the 
judgment  roll,  see  post. 


CHAPTER  IT. 

OF  THE  PROCEEDINGS  ON  THE  PART  OF  THE 
DEFENDANT  PREVIOUS  TO  ANSWERING  OR 
DEMURRING.  . 

The  defendant  having  been  served  with  the  sum- 
mons, or  with  the  summons  and  complaint,  and 
employed  an  attorney  to  conduct  his  defence,  the 
first  step  for  tlie  attorney  to  take  is  to  ascertain 
whether  the  defence  goes  to  the  whole,  or  to  a  part 
only  of  the  action  ;  for  it  frequently  happens  that 
the  plaintiff  claims  too  much,  and  the  defendant  is 
willing  to  admit  a  part,  but  wishes  to  contest  the  re- 
sidue. Hence,  it  becomes  important  to  determine, 
before  answering,  how  much  of  the  plaintiff's  claim 
the  defendant  must  admit  to  be  due,  and  how  much 
he  denies  the  justness  of.  For  if  the  plaintiff  reco- 
vers fifty  dollars  or  more,  he  recovers  the  costs  of 
the  suit,  and  he  may  demand  a  hundred  dollars  in 
his  complaint,  when  in  truth  only  fifty  is  due  to  him. 

SECTION  I. 

Of  Obtaining  a  Copy  of  the  Complaint. 

As  has  been  stated,  the  plaintiff  is  not  required  to 
serve  a  copy  of  the  complaint  upon  the  defendant 
in  the  first  instance,  but  he  may  omit  to  do  so,  sub- 
ject to  the  right  of  the  defendant  afterwards  to  de- 
mand the  service  of  a  copy  on  him.    The  summons 


126  OBTAINING    COPY    OF    COMPLAINT. 

is  all  that  is  required  to   be  served  in  order  to  com- 
mence the  action. 

Case  rf  personal  service  of  the  summons.] — Within  ten 
days  after  the  service  of  the  summons  on  the  de- 
fendant, he  or  his  attorney  may  serve  a  written  de- 
mand or  notice  upon  the  plaintiff's  attorney,  requir- 
ing the  service  on  him  of  a  copy  of  the  complaint. 
T.  e  demand  or  notice  must  state  some  place,  Avith- 
in  the  state,  where  the  copy  complaint  may  be  serv- 
ed. Although  the  Code  is  silent  upon  the  subject, 
yet  it  would  seem  from  analogy  to  other  parts  of 
the  Code,  that  the  place  designated  in  the  notice  or 
demand,  should  be  a  place  where  there  is  a  post 
office,  and  where  papers  can  be  served  by  mail. 
Upon  receiving  such  demand  or  notice,  the  plaintiff 
is  bound  to  serve  a  copy  of  the  complaint  upon  the 
defendant  or  his  attornf'y.  The  defendant  has  twenty 
days  after  the  service  of  the  copy  complaint  to  an- 
swer or  demur  thereto.  In  case  of  several  defend- 
ants appearing  by  one  attorney,  only  one  copy  of 
the  complaint  need  be  served  on  such  attorney. 

In  case  of  other  than  personal  service  of  the  summons  ] — 
In  cases  where  the  service  of  the  summons  is  not 
personal,  as  when  the  service  is  made  by  a  publica- 
tion thereof,  as  in  the  case  of  a  defendant  who  can- 
not be  found,  or  who  is  a  non-resident,  it  is  required, 
as  has  been  stated,  that  the  summons  should  state 
that  the  complaint  has  been  filed,  and  the  time  and 
place  of  filing.  In  such  cases,  the  defendant's  at- 
torney must  procure  a  copy  of  the  complaint  from 
the  clerk  with  whom  it  is  filed,  and  answer  it  within 
the  time  required  by  law.  The  plaintiff  is  not  bound 
to  furnish  the  defendant's  attorney  with  a  copy  of 
the  complaint. 


COMPROMISE   OF    ACTIONS.  127 


SECTION  II. 

Offer  of  the  Defendant  to  Compromise  the  Whole 
OR  A  Part  of  the  Action. 

Under  the  former  practice,  if  the  defendant  was 
satisfied  that  he  was  indebted  to  the  plaintiff,  though 
not  to  the  amount  claimed  in  the  declaration,  he 
might,  (except  in  actions  for  general  or  unliquidated 
damages)  pay  into  court,  the  sum  he  conceived  to  be 
due,  and  leave  the  plaintiff  to  proceed  in  the  action 
at  his  peril. 

The  practice  in  such  cases  has  been  changed  by 
the  Code,  and  an  offer  to  let  judgment  he  entered  for  a 
specified  sum,  is  substituted  for  paying  money  into 
court. 

In  actions  arising  on  contract,  the  defendant  may 
at  any  time  before  judgment  offer  to  allow  judgment 
to  be  taken  against  him  for  such  sum  as  he  con- 
ceived to  be  due  to  the  plaintiff,  or  for  such  relief  as 
he  is  willing  to  admit  the  plaintiff  is  entitled  to.  It 
is  usually  best  to  make  this  offer  as  early  in  the  suit 
as  possible ;  as  the  time  has  an  important  effect  upon 
the  costs  of  the  suit,  if  the  plaintiff  accepts  the  offer. 
Code  §  385. 

The  notice  ] — The  offer  is  made  by  giving  a  written 
notice  to  the  plaintiff's  attorney,  stating  that  the  de- 
fendant will  allow  judgment  to  be  entered  against 
him  for  the  sum,  or  to  the  effect  therein  specified. 
If  the  action  be  on  a  contract  for  the  payment  of 
money  only,  the  notice  must  specify  the  precise 
sum  for  whi 'h  the  judgment  may  be  taken.  Or  if 
it  be  for  the  recovery  of  something  other  than  money 


128  INSPECTION    OF   WRITINGS. 

or  for  some  relief,  other  than  the  payment  of  money, 
the  notice  must  state  specifically  for  what,  and  to 
what  extent  the  judgment  may  be  entered.  The 
notice  may  be  signed  by  the  defendant  or  his  at- 
torney. 

Acceptance  of  offer.] — If  the  plaintiff  concludes  to 
accept  the  offer,  he  must,  within  ten  days  from  the 
receipt  of  notice  of  the  offer,  serve  upon  the  defend- 
ant or  his  attorney,  a  written  notice  of  his  accept- 
ance thereof;  and  may  thereupon  file  the  summons, 
complaint  and  offer,  with  an  affidavit  of  the  service 
of  notice  of  acceptance,  and  the  clerk  will  enter 
judgment  accordingly.  The  papers  must  be  filed 
with  the  clerk  of  the  county,  designated  in  the  com- 
plaint as  the  place  of  trial  of  the  action.  The  judg- 
ment is  entered,  as  in  cases  of  judgment  for  want  of 
an  answer. 

Non-acceptance  of  offer.] — If  the  plaintiff  omit  to 
give  notice  of  his  acceptance  of  the  defendant's 
offer,  within  ten  days  from  the  receipt  thereof,  the 
offer  will  be  deemed  to  be  withdrawn,  and  the  plain- 
tiff is  not  permitted  to  give  it  in  evidence,  and  if  he 
fail  to  obtain  a  more  favorable  judgment  than  the 
defendant  offered  to  allow  him  to  take,  he  will  be 
subjected  to  the  payment  of  the  defendant's  costs 
of  the  action,  from  the  time  the  offer  was  made. 
Code,  §  3 87. 

SECTION  III. 

Of  the  Inspection  of  Writings. 

In  some  cases,  before  the  defendant's  answer  can 
be  drawn,  it  may  be  necessary  to  obtain  the  inypec- 


INSPECTION   OF    WRITINGS.  129 

tion  of  a  paper,  or  book,  or  writing,  in  the  possession 
of  the  plaintiff,  or  under  his  control.  Thus,  in  an 
action  upon  a  special  contract,  the  defendant  may 
desire  to  see  the  contract,  before  putting  in  his 
answer.  For  this  purpose,  the  court  in  which  the 
action  is  pending,  or  a  judge  thereof,  may  order  the 
plaintiff  to  give  to  the  defendant  an  inspection  and 
copy,  or  permit  him  to  inspect  and  take  a  copy  of 
such  paper,  books,  or  writing.    Code,  §  388. 

Under  this  provision  it  has  been  decided  that  the 
court  has  the  power  to  compel  the  discovery  of 
papers  in  the  possession  of  the  adverse  party,  even 
though  they  are  papers  upon  which  the  adverse  par- 
ty relies  to  make  out  his  cause  of  action  or  defence. 
The  object  of  the  exercise  of  such  power  being  to 
prevent  a  surprise  on  the  trial.  In  Mss. 

A  petition  must  be  prepared  and  sworn  to  by  the 
defendant,  or  some  one  in  his  behalf,  stating  that 
such  paper,  book,  or  writing,  is  in  the  possession  or 
.under  the  control  of  the  plaintiff,  and  contains  evi- 
dence relating  to  the  merits  of  the  defence,  or  of 
the  action.  Enough  must  appear  from  the  petition 
to  satisfy  the  judge  that  the  paper,  book  or  writing 
is  material  to  the  defence  or  the  action,  for  the  court 
will  not  compel  the  plaintiff  to  exhibit  a  paper  not 
connected  with  the  subject  of  the  action,  nor  where 
the  object  is  delay.  Hooker  and  others  vs.  Matthews  and 
another,  1  Code  Rep.,  108. 

A  copy  of  the  petition  and  notice  of  the  motion, 
must  be  served  on  the  plaintiff's  attorney.  The  mo- 
tion is  made  like  the  special  motions,  and  must  be 
on  a  notice  of  at  least  eight  days.  If  the  motion  is 
granted,  an  order  must  be  entered   in   accordance 


130  PROCURING    COPY    OF  ACCOUNT. 

with  the  notice,  and  a  copy  served  upon  the  plain- 
tilT's  attorney. 

If  compliance  with  the  order  is  refused,  the  de- 
fendant may  apply  to  the  court,  upon  notice  and 
affidavit  of  the  refusal,  and  obtain  an  order  exclu- 
ding the  paper  fiom  being  given  in  evidence  on  the 
trial,  or  to  punish  the  party  refusing,  or  both.  This 
motion  is  made  like  other  special  motions,  upon 
like  notice.  A  copy  of  the  affidavit  of  the  refusal 
to  comply  with  the  order,  must  be  served  with  the 
notice. 

The  provisions  of  the  Revised  Statutes  in  relation 
to  the  production  and  discovery  of  books,  papers 
and  documents,  (2  R.  S.,  199,  §  21),  and  the  rules 
of  the  Supreme  Court  upon  that  subject,  are  still  in 
force,  and  unrepealed  by  the  Code.  Rules  8,  9,  10 
and  11. 

It  is  deemed  unnecessary,  however,  to  state  the 
practice  in  proceedings  under  the  Revised  Statutes, 
to  obtain  a  discovery,  the  present  books  of  practice 
being  sufficient  for  that  purpose. 

SECTION  IV. 

Of  Procuring  a  Copy  of  an  Account,  alleged  in  the 

Complaint. 

It  has  been  before  stated,  {ante  p.  104,)  that  in  an 
action  upon  an  account  of  any  kind,  either  for  goods, 
wares  and  merchandize  sold,  or  work,  labor  and  ser- 
vices done,  the  plaintiff  need  not  set  forth  in  his 
complaint  the  items  of  his  account,  but  may  state 
generally,  that  the  defendant  is  indebted  upon  an 
account  for  goods,  &c.,  sold,  or  work,  &c.,  done. 


PROCURING  COPY  OF  ACCOUNT.  131 

In  such  cases,  the  defendant,  either  before  he 
answers  the  complaint,  or  at  any  time  afterwards, 
before  trial,  may  procure  a  copy  of  the  account. 
Code,  §  158. 

How  procured,] — A  notice  must  be  drawn,  and 
served  on  the  plaintiff's  attorney,  requiring  him 
within  ten  days  thereafter  to  deliver  to  the  defend- 
an's  attorney  a  copy  of  the  account  alleged  in  the 
complaint,  verified  by  the  oath  of  the  plaintiff,  his 
agent  or  attorney,  to  the  effect,  that  he  believes  it 
to  be  true. 

This  notice  does  not  operate  as  a  stay  of  the  plain- 
tiff's proceedings,  and  care  should  be  taken  that 
the  time  to  answer  does  not  expire.  If  it  is  likely 
to,  and  the  defendant  desires  to  obtain  a  copy  of 
the  account  before  answering,  he  must  get  the  time 
extended.  The  time  may  be  extended  by  a  judge 
of  the  court  or  by  a  county  judge. 

Consequences  of  not  furnishing  copy  account^ — If  the 
plaintiff,  after  having  received  the  notice  demand- 
ing a  copy  of  the  account,  neglect  or  refuse  to  fur- 
nish it  to  the  defendant,  within  the  time  limited, 
he  is  precluded  from  giving  evidence  thereof  on  the 
trial.  He  may,  however,  afterwards  obtain  leave 
to  furnish  it,  by  motion  to  the  court,  upon  such 
terms  as  shall  be  just.  Code,  §  158. 

Further  or  more  particular  bill.] — If  the  copy  of  the 
account  or  bill  of  particulars,  furnished  by  the 
plaintiff  is  incorrect  or  insufficient,  as  being  too 
general  or  otherwise,  the  defendant  may  apply  to 
the  court  or  to  a  judge  thereof  or  to  a  county  judge, 
for  an  order  to  compel  the  plaintiff  to  furnish  a  fur- 
ther or  more   particular  bill ;   and  the  plaintiff  is 


132  STRIKING    OUT    IRRELEVANT   MATTER. 

obliged  to  furnish  it  in  pursuance  of  the  order,  or 
be  precluded  from  giving  evidence  upon  the  triaL 
And  so,  if  a  second  or  third  insufficient  bill  is  fur- 
nished. Code,  §  158. 

It  would  seem,  that  if  a  second  or  third  insuffi- 
cient bill  is  furnished,  the  defendant  may  apply  to 
the  court  in  which  the  action  is  pending,  at  a  spe- 
cial term  thereof,  for  an  order  precluding  the  plain- 
tiff from  giving  evidence  of  his  account  on  the  trial. 
For  this  purpose,  an  affidavit  must  be  made  of  the 
fact  of  the  non-ccmpliance  of  the  plaintiff  with  the 
order  to  furnish  a  further  or  more  particular  bill, 
and  a  copy,  with  a  notice  of  the  motion  must  be 
served  upon  the  plaintiff's  attorney. 

If  the  court  is  satisfied,  that  the  plaintiff  has 
failed  to  comply  with  the  order,  and  no  reason- 
able excuse  is  furnished  therefor,  order  will  be 
made  that  the  plaintiff  be  precluded  from  giving 
any  evidence  of  his  account,  on  the  trial  of  the 
action.  A  copy  of  this  order  must  be  served  upon 
the  plaintiff's  attorney,  and  upon  the  production  on 
the  trial,  of  the  original  order,  and  proof  of  its  ser- 
vice, the  plaintiff  will  not  be  permitted  to  prove  his 
account. 

Motion  to  strike  out  irrelevant  matter. 1 — Before  ans- 
wering or  demurring,  the  defendant's  attorney 
should  see,  if  the  complaint  contains  any  irrelevant 
or  redundant  matter,  to  the  end  that  he  may  pro- 
cure it  to  be  stricken  out.  This  is  done  by  a  special 
motion  to  the  court  upon  notice  to  the  plaintiff's 
attorney.  It  is  now  provided  by  rule  that  a  motion 
to  strike  out  redundant  or  irrelevant  matter  in  a 
pl'iading  must  be  made  before  the  answer  or  demur- 


STRIKING    OUT    IRRELEVANT   MATTER.  133 

rer  is  put  in  and  within  twenty  days  after  service  of 
the  pleading  containing  the  irrelevant  or  redun- 
dant matter;  and  it  cannot  be  made  afterwards. 
Rule  43. 


CHAPTER  III. 

OF  THE  DEMURRER  TO  THE  COMPLAINT,  AND' 
HEREIN  OF   FRIVOLOUS  DEMURRERS. 

In  determining  npon  the  mode  of  defence  to  the 
action,  the  defendant's  attorney  must  first  consider 
whether  npon  the  face  of  the  complaint,  assuming 
the  facts  as  stated  to  be  true,  there  is  sufficient  in 
law,  for  the  plaintiff  to  obtain  the  redness  or  relief 
he  seeks.  For,  if  there  be  some  defect  in  substance 
falling  within  any  of  the  particulars  hereafter  stated', 
the  defendant  is  entitled  to  demur  to  the  complaint. 

A  demurrer  is  defined  lo  be  a  declaration  on  the 
part  of  the  one  demurring  that  he  will  *'  go  no  fur- 
ther," because  the  other  has  not  shewn  sufficient 
matter  against  him,  to  call  upon  him  to  answer. 

Formerly,  there  were  two  kinds  of  demurrer,  gene- 
ral and  special,  and  they  might  be  made  to  defects 
either  in  substance  or  form.  But  of  late,  general  de- 
murrers have  been  discountenanced  by  the  courts, 
and  defects  in  substance,  only,  in  general,  have  been 
allowed  as  grounds  of  demurrer.  So  that  if  the 
party  demurring  succeeded  upon  general  demurrer, 
he  could  recover  no  costs,  and  the  other  party  might 
amend  as  of  course. 

By  the  provisions  of  the  Code,  general  demurrers, 
are  prohibited,  and  now  the  only  ones  allowed  must 
be  special. 


DEMURRER  TO  THE  COMPLAINT.         135 

The  distinction  between  a  general  and  special 
demurrer,  was  this,  that  the  former  objected  to  the 
pleading  generally,  as  not  being  sufficient  in  law  for 
the  plaintiff  to  have  or  maintain  his  action,  without 
specifying  any  particular  defect ;  the  latter,  pointed 
out,  the  objection  particularly,  so  that  the  plaintiff 
was  apprised  of  the  defect. 

All  demurrers  being  now  made  special  by  law, 
great  care  should  be  observed,  that  the  grounds  of 
objection  are  distinctly  stated;  for  the  complaint 
will  not  be  adjudged  bad,  for  any  other  causes  than 
those  stated  in  the  demurrer. 

Formerly,  there  was  a  large  number  of  grounds  of 
objection  to  a  pleading  which  might  be  taken  ad- 
vantage of  by  demurrer.  Thus,  a  misjoinder  of 
counts,  or  in  assigning  several  breaches,  some  of 
which  were  good  and  others  bad,  and  the  like,  were 
causes  of  demurrer. 

Now  however,  the  grounds  of  objection  are  re- 
duced to  six,  and  unless  the  defect  or  objection  is 
embraced  within  one  of  these  the  defendant  cannot 
demur. 

They  are  as  follows:  Code,  §  144. 

1.  That  the  court  has  no  jurisdiction  of  the  per- 
son of  the  defendant,  or  the  subject  of  the  action : 

2.  That  the  plaintiff  has  not  legal  capacity  to  sue  : 

3.  That  there  is  another  action  pending  between 
the  same  parties,  for  the  same  cause: 

4.  That  there  is  a  defect  of  parties,  plaintiff  or  de- 
fendant : 

5.  That  several  causes  of  action  have  been  im- 
properly united: 

6.  That  the  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action. 


136  GROUNDS    OF    DEMURRER. 

With  the  exception  of  the  ^r^^  and  .s/jrifA  grounds  of 
demurrer,  the  defendant  waives  all  objection  or  right 
to  object,  if  he  does  not  demur,  and  therefore  the 
only  way  of  taking  advantage  is  by  demurrer. 

SECTION  I. 

Of  the  Grounds  of  Demurrer. 

Want  of  jurisdiction.] — The  objection  of  want  of  ju- 
risdiction of  the  court  over  the  person  of  the  defend- 
ant, or  the  subject  of  the  action,  must  be  apparent 
upon  the  face  of  the  complaint,  otherwise  the  de- 
fendant must  set  it  up  in  his  answer;  he  cannot  de- 
mur. 

A  brief  statement  of  some  of  the  cases  and  persons 
over  which  the  Supreme  Court  cannot  exercise  ju- 
risdiction, will  suffice  to  inform  the  reader  and  put 
him  upon  the  track,  to  investigate  farther. 

The  State  courts  can  exercise  no  control  over  the 
federal  courts ;  that  is,  the  courts  of  the  United  States. 
Neither  the  State  Legislatures,  or  their  courts  have 
the  power  to  annul  the  judgments  or  determine  the 
extent  of  the  jurisdiction  of  the  courts  of  the  Un- 
ion. This  was  attempted  by  the  Legislature  of  Penn- 
sylvania, and  was  declared  to  be  inoperative  and 
void  by  the  Supreme  Court  of  the  United  States  in 
the  case  of  the  United  States  vs.  Peters,  5  Cranch  R.  115. 
Nor  can  a  state  court  enjoin  a  judgment  of  the  Cir- 
cuit Court  of  the  United  States,  or  stay  proceedings 
under  it.  McKein  vs.  Voorhies,  7  Cranch,  279.  A  state 
court  cannot  interfere  with  seizures  of  property  made 
by  revenue  officers,  under  the  laws  of  the  United 
States,  or  interrupt,  by  process  of  replevin,  injunc- 


GROUNDS  OF  DEMURRER.  137 

tion  or  otherwise,  the  exercise  of  the  authority  of 
the  federal  officers.  Slocumb  v.  Mahcrry,  2  Uhcaton,  1. 
The  official  conduct  of  an  officer  of  the  governtnent 
of  the  United  States,  can  only  be  controlled  by  the 
power  that  created  him. 

And  hence  the  State  courts  have  no  jurisdiction 
over  acts  done  by  him  in  his  official  capacity.  Mc- 
Chmijv.  Silliman,  6  Wheat on^  598. 

Want  of  legal  capacity  to  sue?^ — k  feme  covert  has  not 
in  general  legal  capacity  to  sue;  she  must  join  her 
husband,  except  when  the  action  respects  her  sepa- 
rate property,  or  the  suit  is  against  her  husband. 
So  an  infant  must  sue  by  guardian ;  a  mere  agent  or 
servant  cannot  in  general  sue,  nor  the  committee  of 
a  lunatic  or  habitual  drunkard.  If  in  these  and  sim- 
ilar cases,  the  legal  incapacity  to  sue  in  the  partic- 
ular Liction,  appears  from  the  complaint,  the  defend- 
ant may  for  this  cause  demur. 

Another  action  pending.]— It  is  scarcely  probable  that 
this  ground  of  demurrer  will  ever  appear  upon  the 
face  of  the  complaint,  and  if  the  defence  is,  the  pen- 
dency of  another  action  for  the  same  cause,  the  de- 
fendant will  ordinarily  have  to  assert  it  in  his  an- 
swer. If,  however,  it  does  appear  from  the  com- 
plaint, the  defendant  may  demur.  The  action  al- 
ready pending  must  in  general  be,  between  the  same 
parties,  and  for  the  very  same  and  identical  cause. 
There  are,  however,  exceptions  to  this  rule,  as  where 
separate  actions  for  the  same  single  act  of  trespass, 
are  brought  against  several  defendants,  the  one  last 
served  may  avail  himself  of  the  pendency  of  the  ac- 
tion against  the  first.  1  Camph.  60  ,61.  So  a  recovery 
against  one  of  several  parties  to  a  joint  tort,  frequent- 


138  GROUNDS    OF   DEMURRER. 

ly  precludes  the  plaintiff  from  proceeding  against 
any  other  party  not  included  in  the  action.  Warren 
V.  Bailei,',  4  Taunt.  87,  88. 

Defect  of  parties.] — It  not  unfrequently  happens, 
that  there  is  a  defect  of  parties,  plaintiff  or  defend- 
ant, apparent  upon  the  face  of  the  complaint.  This 
defect  may  appear  in  a  variety  of  ways.  As,  that 
the  plaintiff  has  joined  some  one  with  him,  as  a 
co-plaintiff,  who  ought  not  to  have  been;  or  that  he 
has  omitted  to  join  another  with  him  as  plaintiff, 
who  ought  to  be  joined  ;  or  that  there  are  too  many 
or  too  few  defendants.  In  such  cases,  the  com- 
plaint is  demurrable.  As  to  the  non-joinder  or  mis- 
joinder of  parties,  see  ante  p   14  and  19. 

Misjoinder  of  actions.] — We  have  before  seen  the  dif- 
ferent causes  of  action  that  may  and  may  not  be  join- 
ed, {ante  p  .45.)  If  the  complaint  shews  that  several 
causes  of  action  have  been  improperly  united,  as  a 
claim  to  recover  real  property  and  a  claim  to  recover 
personal  property;  for  injuries  to  the  person  and  in- 
juries to  the  property,  and  the  like,  the  defendant 
may  demur. 

Insufficient  cause  of  action.] — The  most  common 
ground  of  demurrer,  is  that  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action. 
In  other  words,  that  admitting  all  to  be  true  as  stated 
by  the  plaintiff  in  his  complaint,  he  is  not  entitled 
to  the  relief  or  redress  he  demands.  In  stating  the 
facts  which  constitute  the  cause  of  action,  enough 
must  appear,  from  which  the  court  can  determine, 
whether,  supposing  them  to  be  true,  the  plaintiff 
ought  to  recover.  As,  in  an  action  by  the  endorsee 
of  a  promisory  note  against  the  maker,  the  plaintiff 


DRAWING    AND   SERVING   THE   DEMURRER.  139 

must  shew  title  in  himself,  either  by  averring  the 
endorsement,  or  that  he  is  the  lawful  holder  and 
owner  of  the  note.  So,  where  presentment  to  the 
maker  and  notice  to  the  endorser  is  necessary  to 
charge  the  endorser,  it  must  be  alleged  in  the  com- 
plaint, in  a  suit  against  the  endorser.  If  it  therefore 
appear  upon  the  face  of  the  complaint,  that  there  is 
not  a  good  cause  of  action,  the  defendant  may  de- 
mur. By  omitting  to  do  so,  he  does  not  lose  the  right 
to  raise  the  objection  afterwards  on  the  trial  or  ap- 
peal, notwithstanding  he  may  have  answered  the 
complaint.     Code,  §  148. 

SECTION  II. 

Of  Drawing  and  Serving  the  Demurrer. 

Having  determined  upon  the  ground  of  demur- 
rer, the  next  step  is  to  draw  the  demurrer. 

Drawing  demurrer.] — As  all  demurrers  are  required 
to  be  special,  it  is  necessary  that  the  grounds  of  ob- 
jection should  be  distinctly  specified:  {Code  §  145,) 
as  where,  upon  the  face  of  the  complaint  it  appears, 
there  is  a  misjoinder  of  plaintiffs,  the  demurrer 
must  state  in  what  the  misjoinder  consists;  as  that 
A.  B.  who  is  named  as  one  of  the  plaintiffs,  has 
no  interest  in  the  action,  or  should  sue  alone.  Or 
where  several  causes  of  action  are  improperly  uni- 
ted,, the  demurrer  must  state  the  iiiisjoinder;  as, 
that  one  of  the  causes  of  action  is  upon  a  contract, 
and  another  for  injuries  to  the  person;  or,  where 
the  facts  set  forth  in  the  complaint  do  not  consti- 
tute a  cause  of  action,  the  demurrer  must  state 
what  facts  are  lacking,  as  that  no  title  is  shown  in 


140  DRAWING   AND  SERVING  THE   DEMURRER. 

the  plaintiff  to  the  promissory  note;  or,  that  the 
note  has  been  presented  for  payment  and  notice  of 
the  non-payment  given;  or  that  the  note  is  not  due; 
or  that  there  has  been  no  breach  of  the  contract ; 
or  that  the  plaintiff  has  not  performed  a  condition 
precedent ;  or  that  there  was  no  consideration. 

It  is  not  enough  that  the  demurrer  states  gene- 
rally "  that  there  is  a  defect  of  parties,"  or  that 
''several  causes  of  action  have  been  improperly 
united,"  or  "  that  the  complaint  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action ;"    (a)  but 

(a)  See  contra,  Sicift  and  another  v.  De  Witt.  1  Code  Rep.  25»  This  case  de- 
cides, that  to  state  in  a  demurrer  "that  the  complaint  does  not  state  facts  suf- 
ficient to  constitute  a  cause  of  action,  is  a  sufficient  specification  of  the 
grounds  of  objection."  From  the  correctness  of  this  decision,  we  with  defer- 
ence must  dissent.  The  best  test  of  the  sufficiency  of  a  demurrer,  is  to  recur 
to  the  old  practice.  A  general  demurrer  alleged  ♦<  that  the  declaration  and  the 
matters  therein  contained,  in  manner  and  form  as  therein  stated,  are  not  sufl5- 
cient  in  law  for  the  plaintiff  to  have  or  maintain  his  action  against  the  defend- 
ant." That  was  a  ground  of  demurrer,  and  it  was  sufficient  in  a  general  de- 
murrer. But  this  cl  'ss  of  demurrers  had  almost  gone  out  of  practice,  for  the 
court  had  required  by  rule,  (Supreme  Co-art  rule  82)  that  the  demurrer  should 
"  hriejhj  but  plainly  specify  the  objections,"  and  if  the  pleading  was  adjudged  bad 
for  any  cause  not  so  specified,  no  costs  could  be  recovered,  and  the  pleading 
might  be  amended  of  course.  The  object  of  requiring  the  demurrer  to  be 
special,  was  to  pint  out  to  the  adverse  party  the  particular  defect  or  objection, 
to  prevent  a  surprise  and  enable  him  to  amend.  Formerly,  a  defect  in  form 
was  ground  of  demurrer ;  now,  it  must  be  a  defect  in  substance  only.  The  policy 
of  the  Code  is  to  remove  all  technical  obstructions  in  the  path  of  justice,  and 
dispose  of  cases  upon  their  merits  alone;  hence  large  powers  are  given  to  the 
courts  to  allow  amendments,  and  disregard  defects  in  pleadings.  And  in  view  of 
this,  it  requires  demurrers  to  be  special.,  and  a  general  demurrer  is  not  allowed 
in  any  case.  Now,  the  language  of  the  sixth  ground  of  objection,  is  nothing 
more  than  what  was  contained  in  a  general  demurrer,  and  it  can  scarcely  be 
said  that,  to  merely  transcribe  the  words,  is  so  distinctly  specifying  the  grounds 
of  objection,  as  is  required  by  the  spirit  of  the  Code  and  the  intention  of  the 
Legislature.  The  same  intention  is  manifest  in  requiring  the  anstrer  of  the 
defendant  to  state  any  new  matter  constituting  a  defence,  and  a  general  or  spe- 
cijic  denial  of  such  parts  of  the  complaint  as  are  controverted.  It  cannot  be 
pretended  that  an  answer  of  the  "  general  issue  "  would  be  such  a  general  or 
specific  denial.  The  Code  has  annexed  a  penalty,  to  such  demurrers  as  do  not 
distinctly  specify  the  objections,  and  they  may  be  disregarded,  and  it  was  clearly 
the  intention  of  the  Legislature,  to  require  demurrers  to  be  so  distinct  and  spe^ 
cial  that  the  adverse  party  might  know  what  the  objection  was ;  and  who  could 
tell  from  such  a  general  objection,  what  the  particular  gouad  is. 


DRAWING   AND    SERVING    THE   DEMURRER.  141 

it  must  state  wherein  the  defect  consists,  otherwise 
it  would  be  a  general,  not  a  special  demurrer. 

If  the  demurrer  do  not  distinctly  specify  the 
grounds  of  objection,  it  may  be  disregarded,  in  which 
case  the  plaintiff  proceeds  to  enter  judgment  in  the 
same  manner  as  if  no  answer  was  put  in. 

The  defendant  is  not  obliged  to  demur  to  the 
whole  complaint;  he  may  demur  to  any  one  or 
more  of  the  alleged  causes  of  action,  stated  there- 
in. As  where  two  causes  of  action  are  united  in 
the  same  comp:aint,  one  of  which  is  sufficiently 
stated,  and  the  other  not,  the  defendant  may  de- 
mur as  to  one,  and  answer  as  to  the  other.  Code, 
§151. 

Demurrers  need  not  be  verified  in  any  case. 

If  the  demurrer  exceeds  two  folio  in  length,  it  is 
the  duty  of  the  attorney,  to  distinctly  number  and 
mark  each  folio  on  the  margin  thereof,  and  all  co- 
pies either  for  the  parties  or  court,  must  be  nuixi- 
bered  or  marked  in  the  margin,  so  as  to  conform  to 
the  oriirinal  draft.  Rule  43. 

Filing  and  serving  deinurrer.] — The  demurrer  should 
be  filed  with  the  clerk  of  the  county  where  the  ac- 
tion is  to  be  tried,  ft  is  not  absolutely  necessary 
to  file  the  demurrer,  but  it  mny  be  compelled  in  the 
same  manner  that  the  complaint  may  be.     S  e  ante 

It  is  admitted,  in  the  opinion  of  the  learned  judge,  tliat  to  state  that  the  par- 
ty demurs  for  a  defect  of  partien,  would  be  insufficient,  and  yet  we  can  per- 
ceive no  difiference  between  that  and  any  other  ground  of  objection  permitted 
by  the  Code;  and  if  insufficient  in  one  case  it  must  be  in  all.  There  are  six 
causes  of  demurier  allowed;  they  are  distinctly  and  clearly  ^defined;  there 
can  be  no  difficulty  in  understanding  them,  and  yet  the  Legislature  say  in  the 
next  section,  that  the  grounds  of  objection  shall  be  distinctly  specified.  What 
can  this  mean  except  that  the  demurrer  must  state  v'herein  the  pleading  is  de- 
fective. This  point  was  raised  before  Mr.  Justice  Watson,  at  the  Columbia 
special  term,  who  held  that  a  demurrer  of  this  kind  was  insufficient.  The 
case  is  not  reported.     But  see  Grant  v.  Lasher^  2  Code  Rep,  2. 


142  AMENDING    COMPLAINT   AFTER    DEMURRER. 

p.  109.  A  copy  of  the  demurrer  must  be  served  upon 
the  plaintiff's  attorney  within  twenty  days  from  the 
service  of  the  complaint  upon  the  defendant,  unless 
the  time  has  been  extended. 

Enlarging  time  to  demur.] — If  the  time  allowed,  (i. 
e.  the  twenty  days,)  is  not  sufficient  for  the  defend- 
ant's attorney  to  prepare  and  serve  the  demurrer,  he 
should  apply  to  a  judge  of  the  court  in  which  the 
action  is  pending,  or  to  a  county  judge,  and  obtain 
an  order  enlarging  the  time.  {Cade,  ^  405.)  For  this 
purpose  an  affidavit  must  be  prepared  stating  the 
reasons  for  requiring  more  time,  and  a  copy  thereof 
must  be  served,  with  a  copy  of  the  order  upon  the 
plaintiff's  attorney.  The  original  affidavit  may  be 
served,  or  a  copy,  at  the  option  of  the  defendant's 
attorney.  The  plaintiff  may  disregard  the  order,  if 
the  affidavit  or  a  copy  thereof,  is  not  served  with 
the  copy  order. 

Amending  complaint  after  demurrer.] — If  the  plain- 
tiff's attorney  conceives  that  the  demurrer  is  well 
taken ;  that  is,  that  his  complaint  is  defective,  he 
may  amend  it  of  course,  without  costs,  within 
twenty  days  after  receipt  of  the  demurrer.  A  copy 
of  the  amended  complaint  must  be  served  upon  the 
defendant  or  upon  his  attorney.  It  is  not  necessary 
to  serve  a  new  summons.  The  defendant  has  twen- 
ty days  from  the  receipt  of  the  amended  complaint, 
to  demur  to  it  again  or  to  answer  it,  as  the  case  may 
be:  and  if  he  fails  to  do  so,  the  i^laintiff  upon  filing 
with  the  clerk  of  the  cc  unty  in  which  the  action  is 
pending,  an  all" davit  of  the  service,  and  that  no  an- 
swer or  demurrer  has  been  received,  may  obtain 
judgment  in  the    same  manner,  as  is  provided  in 


FRIVOLOUS    DEMURRER.  l43 

cases  of  judgment  for  want  of  an  answer.  See  ante 
p.  120.  If  however  it  is  necessary  to  make  a  special 
application  to  the  court,  before  judgment  can  be  en- 
tered, as  it  is  in  all  cases,  except  actions  arising  on 
contract  for  the  payment  of  money  only,  the  plain- 
tiff must  serve  upon  the  defendant  a  written  notice, 
of  at  least  eight  days,  specifying  the  time  and  place 
where  he  will  apply  for  judgment.  For  form  of  no- 
tice, see  Appendix. 

Frivolous  demurrer] — If  the  demurrer  served  by  the 
defendant  is  clearly  without  foundation  and  inter- 
posed merely  for  delay,  the  plaintiff  rnay  apply  to  a 
judge  of  the  court,  for  judgment  on  account  of  the 
frivolousness  of  {he  denmrrer.  {Code,  §  247.)  This  ap- 
plication may  be  made  to  the  judge  in  or  out  of 
court,  but  it  cannot  be  made  to  a  county  judge. 

A  notice  of  the  motion  must  be  served  upon  the 
defendant's  attorney,  at  least  five  days,  before  the 
time  specified  for  making  the  motion,  stating  the 
time  and  place  where,  and  the  name  of  the  judge  be- 
fore whom  the  motion  will  be  made,  and  the  grounds 
for  moving.  (For  form  of  notice,  see  Appendix.)  The 
motion  is  founded  upon  the  complaint  and  demur- 
rer.   No  other  papers  are  necessary 

At  the  time  and  place  mentioned  in  the  notice,  the 
plaintiff's  attorney  or  counsel  must  attend  and 
make  the  motion.  If  no  opposition  is  made  ;  or,  if 
the  defendant's  attorney  do  not  appear,  and  proof  of 
the  service  of  the  notice  is  furnished ;  or,  if  the 
judge  is  satisfied  that  the  demurrer  is  frivolous,  he 
will  make  an  order  overruling  the  demurrer,  and 
directing  judgment  to  be  entered  for  the  plaintiff. 

The  plaintiff  then  enters  judgment  in  the  same 
manner  as  on  a  failure  to  answer.  See  ante  p.  120. 


CHAPTER  IV. 

OF  THE  ANSWER  OF  THE  DEFENDANT  AND  THE 
REPLY  OF  THE  PLAINTIFF. 

The  attorney  for  the  defendant  having  determined 
not  to  demur  to  the  coir.plaint,  or  the  complaint 
having  been  amended,  or  the  demurrer  having  been 
overruled,  the  next  step  for  the  defendant,  is  to  con- 
clude upon  the  answer  to  be  put  in. 

In  abolishing  the  forms  of  pleading,  the  different 
kinds  of  pleas,  as  heretofore  denominated,  are  in 
like  manner  abolished,  and  instead  of  the  general 
issue  and  notice,  or  general  issue  and  special  pleas, 
but  one  plea  is  allowed  and  that  is  called  a  n  answer. 

The  student,  by  recurring  to  the  late  practice  of 
the  Suprem.e  Court,  wi'l  observe  that  very  great  dif- 
ficulties existed  in  determining  what  could  and  what 
could  not  be  given  in  evidence  under  the  general 
issue,  either  with  or  without  a  notice,  and  what 
matters  had  to  be  specially  pleaded.  And  hence, 
special  pleading  had  become,  from  the  difficulties, 
with  which  it  was  surrounded,  one  of  the  most  in- 
tricate and  important  branches  of  legal  study.  Thus 
in  the  action  of  assumpsit,  under  the  plea  of  non- 
assumpsit,  which  was  the  general  issue,  most  matters 
of  defence,  existing  at  the  time  of  the  formiition  of 
the  contract,  or  subsequently  arising,  and  which 
shew  it  to  have  been  originally  void,  or  to  have  been 
afterwards  avoided  or  discharged;  as  the  statute  of 


ANSWER    AND    ITS    INCIDENTS.  145 

gaming,  usury,  infancy,  release,  payment,  failure 
of  consideration  and  the  like,  could  be  given  in  evi- 
dence under  this  plea,  while  the  statute  of  limita- 
tions and  tender,  had  to  be  specially  pleaded. 

But  in  the  Court  of  Chancery,  different  rules  pre- 
vailed, and  none  of  the  distinctions  which  existed 
in  courts  of  law,  could  arise  to  embarrass  the  plead- 
er. As  the  billy  in  the  former  court,  was  required  to 
state  the  grounds  for  the  relief  sought  and  the  facts 
and  circumstances  constituting  the  equitable  cause 
of  action,  so  the  answer  was  required  to  deny  or  tra- 
verse these  facts,  or  admitting  them,  set  up  some 
new  matter  of  defence. 

In  analogy  to  this  pleading  in  the  old  Court  of 
Chancery,  the  Code  has  required  the  defendant  to 
answer  the  compl.dnt. 

SECTION  I. 

Of  the  Answer  and  its  Incidents. 

The  object  of  the  answer,  is  two  fold.  First,  to 
controvert  the  case  stated  by  the  plaintiff  in  his  com- 
plaint, and  second,  to  set  up  any  new  matter  of  de- 
fence, upon  which  the  defendant  may  rely. 

Thus  the  defendant  may  deny  all  or  any  of  the 
facts  stated  in  the  complaint :  cr  he  may  confess  or 
admit  them  to  be  true  and  avoid  them  by  some  new 
matter  constituting  a  defence. 

What  to  contain.'] — The  answer  must  contain  a  gen- 
eral or  specific  denial  of  each  allegation  in  the  com- 
plaint, controverted  by  the  defendant,  or  a  denial 
thereof  according  to  his  information  and  belief,  or 

10 


146  ANSWER    AND    ITS    INCIDENTS. 

of  any  knowledge  thereof  sufficient  to  forma  belief. 
Code,  §  149,  fuh.  1. 

If  the  defendant  intends  to  deny  the  facts  stated 
in  the  complaint,  and  rest  his  defence  upon  his  abil- 
ity to  disprove  them,  or  upon  the  inability  of  the 
plaintiff  to  prove  them  as  alleged,  he  must  do  so  dis- 
tinctly ;  and  the  denicil  must  refer  directly  to  the 
allegation  intended  to  be  controverted.  As,  that  he 
did  not  make  the  promissory  note  mentioned  in  the 
complaint,  or  that  he  is  not  guilty  of  the  injury  to 
the  person  or  the  property  stated  in  the  complaint, 
or  that  the  plaintiff  is  not  seized  of  the  real  property, 
and  the  like. 

Or  where  the  facts  stated  in  the  complaint  are  not 
within  the  personal  knowledge  of  the  defendant,  he 
may  deny  that  they  are  true,  according  to  his  infor- 
mation and  belief. 

Another  mode  of  avoiding  the  consequence^  of  an 
admission  of  the  truth  of  the  facts  alleged  in  the 
complaint,  where  the  defendant  is  ignorant  of  the 
truth  thereof,  is  to  aver  that  he  has  not  sufficient 
knowledge  of  such  facts  to  form  a  belief 

In  each  of  these  cases,  the  onus  prohandi  is  cast  up- 
on the  plaintiff  of  sustaining  his  allegations  by  proof. 
And  in  the  case  of  a  general  or  specific  denial,  or  a 
denial  upon  information  and  belief,  the  defendant 
may  disprove  the  facts,  and  show,  in  opposition  to 
the  plaintiff's  evidence,  that  they  did  not  exist.  But 
an  averment  simply  that  the  defendant  has  not  suf- 
ficient knowledge  of  the  facts  to  form  a  belief,  with- 
out a  denial  of  their  existence,  leaves  the  proof 
wholly  with  the  plaintiff,  and  the  defendant  cannot 
introduce  evidence  on  the  trial  to  disprove  them. 

Thus,  if  the  defendant  denies  expressly,  or  upon 


ANSWER    AND    ITS    INCIDENTS.  147 

information  and  belief  that  he  committed  the  injury 
complained  of;  or  that  the  plaintiff  is  the  owner  or 
seized  of  the  land,  although  the  harden  is  thrown 
upon  the  plaintiff  to  make  out  his  case  by  proof,  yet 
the  defendant  may  introduce  evidence  to  show  that 
he  did  not  commit  the  injury,  or  that  the  plaintiff  is 
not  seized  of  the  land.  But  if  the  defendant  alleges 
that  he  has  not  sullicient  knowledge  whether  the 
plaintiff  is  seized,  to  form  a  belief,  he  leaves  the 
case  with  the  plaintiff  to  show  his  seizin,  and  is  es- 
topped from  examining  witnesses  on  his  side  to  dis- 
prove it. 

As  we  have  seen,  the  defendant  may  admit  and 
avoid  any  of  the  facts  stated  in  the  complaint.  The 
avoidance  consists  in  setting  up  some  new  matter, 
not  contained  in  the  complaint,  and  which  consti- 
tutes a  defence  to  the  action.  Thus,  the  defendant 
may  admit  that  he  made  the  note,  but  aver  that  he 
has  paid  it,  or  that  it  is  usurious,  or  that  he  was  an 
infant,  or  that  the  cause  of  the  plaintiff 's  action  has 
not  accrued  within  six  years  next  before  the  com- 
mencement of  the  suit,  or  any  other  matter,  not  sta- 
ted in  the  complaint,  which  goes  to  show  that  the 
plaintiff  ought  not  to  sustain  the  action. 

In  stating  the  new  matter  in  an  answer,  it  must 
be  done  in  ordinary  language;  that  is,  without  any 
particular  form,  without  repetition,  and  in  such  a 
manner  as  to  enable  a  person  of  common  under- 
standing to  know  what  is  intended.  Code  §  149  suh  2. 

The  defendant  is  not  restricted  to  one  defence 
only,  but  may  set  up  as  many  in  his  answer  as  he 
has.  In  doing  so,  however,  they  must  be  separately 
stated,  and  must  refer  to  the  causes  of  action,  which 


148  ANSWER    AND    ITS    INCIDENTS. 

they  are  intended  to  answer,  in  such  a  manner,  that 
they  may  be  intelligibly  distinguished.  Code  §  150. 

The  same  rules  which  govern  the  complaint  as  to 
the  manner  of  stating  the  cause  of  action,  apply  to 
the  mode  of  stating  the  defence,  and  it  is  sufficient 
to  refer  to  that  subject,  ante  j).  99. 

In  an  action  against  the  endorser  of  a  promissory 
note,  an  answer,  that  as  to  the  presentment  and 
non-payment  of  the  note,  the  defendant  had  not 
sufficient  knowledge  to  form  a  belief,  was  held  suf- 
ficient to  raise  an  issue  as  to  the  presentment  of  the 
note.  Dickinson  v.  Kimball,  1.  Code  Rep.  49.  But  an 
answer,  to  a  complaint  upon  a  promissory  note, 
"  that  the  defendant  is  not  indebted  in  manner  and 
form,  as  in  the  complaint  is  alleged,"  was  held  ta 
be  insufficient,  as  being  a  conclusion  of  law  upon 
the  facts  alleged  in  the  complaint,  and  not  a  state- 
ment of  a  new  fact.  It  is  simply  the  old  plea  of  nil 
debit,  and  takes  no  issue  upon  anything  stated  in  the 
complaint.  Pierson  et  al,  v.  Cooley  et  al.,  1  Code  Rep.  91. 
Beers  Sf  Clark  v.  Squire  et  al.,  ibid.  84. 

As  we  have  seen,  {anfe  141,)  the  defendant  may  de- 
mur to  part  of  the  complaint,  an  J  answer  another 
part. 

It  is  necessary  that  the  answer  should  controvert 
every  material  allegation  in  the  complaint,  that  it  is 
intended  to  controvert,  fur  if  it  do  not,  such  alle- 
gations will  be  trken  as  true,  and  the  defendant  will 
not  be  permitted  to  disprove  them  on  the  trial.  But 
by  answering  them,  he  is  not  concluded  from  insist- 
ing on  the  trial  that  the  facts  stated  in  the  com- 
plaint are  not  sufficient  to  constitute  a  cause  of 
action.  Code,  §  148. 


ANSWER    AND    ITS    INCIDENTS.  149 

If  the  action  be  upon  a  contract,  the  defenda  it, 
when  he  serves  his  answer  upon  the  pUiintifF,  may 
also  give  a  written  notice  to  the  plaintiff,  containing 
an  offer,  that  if  the  defendant  fail  in  his  defence  to 
the  action,  the  damages  which  the  plaintiff  may  be 
entitled  to  recover,  may  be  assessed  at  a  sum  to 
be  specified  in  the  notice.  The  plaintiff,  having  re- 
ceived the  notice,  may,  when  he  notices  the  cause 
for  trial,  or  at  anytime  before,  give  notice  in  writing 
to  the  defendant's  attorney,  that  he  accepts  the 
offer.  In  case  the  verdict  upon  the  trial  be  for 
the  plaintiff,  and  he  shall  have  accepted  the  offer, 
the  damages  shall  be  assessed  at  the  sum  specified 
in  the  offer  of  the  defendant.   Code,  §  383. 

If  the  plaintiff  does  not  accept  the  offer,  by  giv- 
ing notice  of  his  acceptance,  as  above  stated,  he 
must  prove  his  damages  on  the  trial,  in  the  same 
manner  as  if  the  offer  had  not  been  made,  and  the 
plaintiff  cannot  give  the  offer  in  evidence.  Bat  he 
is  not  restricted  in  his  recovery  to  the  amount  speci- 
fied in  the  offer-,  he  may  receive  a  larger  sum,  in 
which  case  he  will  be  entitled  to  recover  the  costs 
of  the  action.  If,  however,  his  recovery  do  not  ex- 
ceed the  amount  specified  in  the  offer  of  the  de- 
fendant, the  defendant  will  recover  the  expenses  in- 
curred by  him  in  consequence  of  any  necessary  pre- 
paration for,  or  in  making  a  defence  in  respect  to 
the  question  of  damages.  In  such  a  case,  the  ex- 
penses, to  which  the  defendant  is  entitled,  must  be 
ascertained  at  the  trial. 

Verifying  answer.'] — If  the  complaint  is  verified,  then 
it  is  necessary  to  verify  the  answer;  otherwise  net, 
The  mode  of  verifying  the  answer,  when  necessary, 
is  the  same  as  the  manner  of  verifying  the  com- 


150  ANSWER    AND    ITS    INCIDENTS. 

plaint — as  to  which,  see  ante  p.  106.  The  defendant 
may  verify  his  answer,  notwithstanding  the  com- 
plaint is  not,  and  the  effect  of  it  will  be,  not  to 
make  it  evidence,  but  to  compel  the  plaintiff  to 
verify  his  reply,  if  one  is  put  in. 

Sham  answers. '\ — If  the  answer  served  by  the  de- 
fendant be  clearly  frivolous,  that  is,  raising  no  issue 
oilaw  or  o^  fact,  and  be  put  in  merely  for  delay,  the 
proper  course  is  to  make  a  motion  to  the  court  in  which 
the  action  is  pending,  to  have  it  stricken  out.  Codey 
§§  152,  247. 

It  must  be  a  plain  case  of  a  sham  or  a  frivolous 
answer,  or  the  court  will  refuse  to  strike  it  out, 
leaving  the  plaintifl  to  demur.  Code,  §  152. 

An  affidavit  must  be  made  of  the  receipt  of  the  an- 
swer, and  a  copy,  with  notice  of  the  motion,  must 
be  served  upon  the  defendant's  attorney,  at  least ^lye 
days  before  the  time  specified  for  making  the  motion, 
stating  in  the  notice,  the  time  and  place,  and  court 
before  whom  the  motion  will  be  made.  Code  §  247. 

This  motion  may  be  made  to  the  court  in  which 
the  action  is  pending  at  any  of  its  special  terms,  as 
in  case  of  other  motions,  or  may  be  made  before  a 
jud:;e  at  chambers. 

If  the  court  or  officer  is  satisfied  that  the  answer 
is  a  sham  one,  he  will  make  an  order  striking  it  out, 
and  the  plaintiff  may  enter  judgment  in  the  action, 
as  upon  fiiilure  to  answer. 

If  the  answer  contains  more  X\\m\two  folios,  the 
defendant's  attorney  must  distinctly  number  and 
mark  each  folio  in  the  margin  thereof,  and  all  copies, 
either  for  the  parties  or  the  court,  must  be  number- 
ed or  marked  in  the  margin,  so  as  to  conform  to  the 
original  draft.     Rule  44.  ' 


ANSWER    AND    ITS    INCIDENTS.  151 

Irrelevant  and  redundant  matter  in  an  answer.] — If  the 
answer  contain  matter  redundant  or  irrelevant  to  the 
issue  intended  to  be  raised  by  the  complaint,  the 
plaintiff  may  apply  to  the  court,  to  have  it  stricken 
out.  The  motion  for  this  purpose  must  be  made  like 
the  motion  to  strike  out  a  sham  or  frivolous  answer, 
{Code  160,)  and  must  be  made  within  twenty  days 
after  the  service  of  the  answer.     Rule  43. 

In  cases  of  sham  answers,  it  seems  that  the  plain- 
tiff does  not,  b}'-  replying,  lose  the  right  to  move  af- 
terward, to  have  it  stricken  out.  Stokes  v.  Hager,  1 
Code  Rep.  84. 

So,  if  the  allegations  in  the  answer  of  new  mat- 
ter, are  so  indefinite  or  uncertain  that  the  precise  na- 
ture of  the  defence  is  not  apparent,  the  court,  upon 
the  motion  of  the  plaintiff,  which  is  conducted  like 
other  special  motions,  may  require  the  ansv/er  to  be 
made  definite  and  certain  by  amendment.  Code  160. 
But  this  motion  must  be  made  within  twenty  days 
after  the  answer  is  served.     Rule  43. 

Filing  and  serving  answer.] — The  answer  having 
been  drawn  and  verified,  when  a  verification  of  it  is 
proper  or  necessary,  it  should  be  filed  in  the  office  of 
the  clerk  where  the  action  is  p  nding,  although,  it 
is  not  alsolutely  necessary  to  file  it  in  the  first  in- 
stance. If  the  filing  is  omitted,  it  may  be  compel- 
led by  the  plaintiff,  in  the  same  manner  that  the  fi- 
ling of  the  complaint  may  be  enforced,  as  to  which 
see  ante  p.  109.  A  copy  of  the  answer  must  then  be 
served  upon  the  plaintiff's  attorney,  within  twenty 
days  from  the  service  of  the  summons  and  complaint, 
unless  the  time  has  been  enlarged. 

Enlarging  time  to  answer.] — If  the  time  allowed,  (i.  e.. 
the  twenty  days)  is  not  sufficient  for  the  defendant's 


152  ANSWER    AND    ITS   INCIDENTS. 

attorney  to  prepare  and  serve  the  answer,  he  should 
apply  to  a  judge  of  the  court  in  which  the  action  is 
pending,  or  to  a  county  judge,  and  obtain  an  order 
enlarging  the  time.  Code  §  405.  For  this  purpose 
an  affidavit  must  be  prepared,  stating  the  reasons  for 
requiring  more  time,  Tate  the  affidavit  to  the  judge 
and  get  the  order,  serve  the  original  affidavit  or  a 
copy  of  it,  with  a  copy  of  the  order  upon  the  plain- 
tiff's attorney.  The  plaintiff's  attorney,  may  disre- 
gard the  order  if  the  original  or  a  copy  of  the  affida- 
vit is  not  served. 

Answering  the  amended  complaint^ — As  we  have  seen 
{ante  p.  108)  the  plaintiff,  if  he  conceives  it  necessary, 
may,  after  he  receives  the  answer,  amend  his  com- 
plaint. If  he  do  so,  a  copy  of  the  amended  answer 
is  served  upon  the  defendant's  attorney.  The  de- 
fendant must  then  put  in  a  demurrer  or  answer,  in 
the  same  manner  that  he  would  to  the  original 
complaint,  and  it  must  be  served  within  the  same 
time  that  is  allowed  to  answer  or  demur  to  the  first 
complaint. 

Demurrer  to  answer^ — The  plaintiff's  attorney  hav- 
ing received  the  answer  of  the  defendant,  he  should 
first  examine  it  to  see  if  the  defence  set  up,  is  a 
valid  one  in  law,  and  whether  the  facts  stated  are 
sufficient  to  sustain  the  defence,  supposing  them  to 
be  true.  Thus,  if  in  an  action  by  the  endorsee  of  a 
negotiable  bill  of  exchange  or  promissory  note, 
agrainst  the  drawer  or  maker,  the  defendant  should 
set  up  that  he  had  a  set-off  to  the  amount  of  the 
bill  or  note  against  the  payee,  without  averring  that 
the  bill  or  note  was  transferred  to  the  plaintiff  after 
maturity,  that  would  be  an  invalid  defence. 

In  cases  o^  insufficiency  of  the  defence  as  stated  in 


THE   REPLY    AND    ITS    INCIDENTS.  153 

the  answer,  the  plaintiff  may  demur,  but  he  cannot 
demur  for  any  other  reason.  Code,  §  153. 

The  grounds  of  the  demurrer  must  be  distinctly 
stated,  with  as  much  precision  and  clearness,  as  is 
required  in  demurrers  to  a  complaint. 

The  plaintiff  may  demur  to  part  of  the  defences, 
where  there  are  several  set  up  in  the  answer  and 
reply  to  the  residue. 

The  plaintiff  is  obliged  to  demur  to  the  answer  if 
he  wishes  to  object  to  it  as  being  insufficient,  for  by 
not  demurring  he  waives  the  right  to  object  to  the 
insufficiency  of  the  defence  set  up,  on  the  trial  of 
the  cause,  as  an  issue  of  law  can  only  be  raised 
upon  a  demurrer.  Code,  §  249,  sub.  1. 

SECTION  II. 

Of  the  Eeply,  axd  its  Incidents. 

If  the  plaintiff  concludes  not  to  demur  to  the  new 
matter  set  up  in  the  answer,  or  to  only  one  of  the 
defences,  and  he  is  not  willing  to  admit  that  the 
facts  stated  are  tru/e,  he  must  reply. 

To  what  the  plaintiff  may  reply] — If  the  answer  con- 
tain new  matter,  that  is,  matter  not  contained  in 
the  complaint,  and  which  if  true  would  constitute 
a  good  defence  to  the  action,  the  plaintiff  must  re- 
ply to  it.  Thus,  if  in  an  action  of  trespass  for  taking 
personal  property,  the  defendant  should  answer  that 
it  was  taken  by  virtue  of  a  chattel  mortgage  given 
by  the  plaintiff  to  the  defendant,  the  plaintiff  would 
be  bound  to  reply,  either  denying  the  fact  of  the 
existence  of  the  mortgage  or  averring  something  by 
way  of  avoidance  of  it ;   as,  that  it  had  been  paid : 


154  VERIFYING    REPLY. 

or,  if  in  an  action  to  recover  real  propert)^  as  the 
heir  at  law,  the  defendant  should  claim  in  his  ans- 
wer that  the  ancestor  left  a  will,  and  he  holds  by 
virtue  of  a  devise  to  him  in  the  will,  the  plaintiflf 
must  reply,  for  this  would  be  new  matter;  so,  in  an 
action  upon  a  promissory  note,  the  defendant  sets 
up  payment;  or,  infancy;  or,  usury;  or,  the  statute 
of  limitations,  the  plaintiff  must  reply.  But  if  the 
answer  simply  negatives  the  allegations  contained  in 
the  complaint;  that  is,  denies  them,  then  no  reply 
is  necessary.  As  where  the  answer  alleges  that  the 
defendant  did  not  make  the  note,  or  did  not  commit 
the  trespass,  or  did  not  publish  the  libel,  mentioned 
in  the  complaint.  In  these,  and  similar  cases,  an 
issue  is  formed  and  no  reply  is  necessary. 

Verifying  reply.] — The  same  rules  prevail  in  regard 
to  verifying  the  reply,  that  exist  in  regard  to  the 
answer.  If  the  preceding  pleading  is  verified,  then 
it  becomes  necessary  to  verify  the  reply.  This  is 
done  in  the  same  manner  that  the  complaint  is 
verified,  as  to  which  see  ante  p.  106. 

The  plain' iff  may  verify  the  reply,  notwithstand- 
ing the  preceding  pleading  is  not,  but  as  the  reply 
is  the  last  pleading  of  fact  that  is  allowed  in  an 
action,  nothing  would  be  gained  by  verifying  it,  in 
cases  where  it  is  not  rendered  necessary  by  the  pre- 
ceding pleadings. 

Irrelevant  and  redundant  matter  in  a  reply.] — The 
same  rules  exist  in  regard  to  irrelevant  and  redun- 
dant matter  in  a  reply,  that  prevail  in  regard  to  an- 
swers. 

The  plaintiff  in  his  reply,  must  negative  the  al- 
legations of  new  matter  contained   in  the  answer. 


ENLARGING  TIME  TO  REPLY.  155 

He  must  deny  generally  or  particularly  each  alle- 
gation intended  to  be  controverted  by  him  :  or 
aver  that  he  has  not  sufficient  knowledge  or  informa- 
tion thereof  to  form  a  belief;  or,  he  may  admit  the 
truth  of  the  allegations  and  allege  any  new  matter 
in  avoidance  of  them.  But  the  allegation  of  new 
matter  must  not  be  inconsistent  with  the  complaint. 
In  alleging  new  matter,  in  avoidance  of  the  an- 
swer or  of  any  defence  set  up  therein,  it  must  be 
done  in  the  same  manner  as  is  required  in  respect 
to  stating  the  cause  of  action  in  the  complaint  or 
the  defence  in  an  answer,  that  is,  it  must  be  stated 
"in  ordinary  and  concise  language,  without  repeti- 
tion, and  in  such  a  manner  as  to  enable  a  person  of 
common  understanding  to  know  what  it  intended." 
Code,  §153. 

If,  however,  the  reply  contain  any  irrelevant  or 
redundant  matter,  the  defendant  may  apply  to  the 
court  or  a  judge  thereof,  by  motion,  upon  notice  to 
the  plaintiff,  to  have  such  matter  stricken  out  of 
the  reply ;  or  if  the  allegations  are  indistinct  and 
uncertain,  he  may  in  like  manner  apply  to  have 
them  made  distinct  and  certain,  or  if  they  be  in- 
sufficient in  law  to  avoid  the  defence,  the  defendant 
may  demur. 

The  motion  above  mentioned  is  conducted  like 
other  special  motions,  but  must  be  made  within 
twenty  days  from  the  time  of  its  service.  Rule  43. 
Enlarging  time  to  reply.'] — As  the  reply  must  be 
served  within  twenty  days  from  the  time  the  an- 
swer is  received,  the  plaintiff,'  if  there  be  not  time 
to  do  so,  may  get  the  time  extended  in  like  man- 
ner as  the  time  to  answer  may  be,  as  to  which  see 
ante  p.  151. 


156  EFFECT    OF   REPLY. 

If  the  reply  contains  more  than  two  folio,  the  at* 
torney  must  distinctly  number  and  mark  each  fo- 
lio in  the  margin  thereof;  and  all  copies  either  for 
the  parties  or  the  court,  must  be  numbered  or  mark- 
ed in  the  margin,  so  as  to  conform  to  the  original 
draft.     Rule  44. 

Filing  and  serving  reply.'] — The  reply  having  been 
drawn  and  verified,  Avhen  a  verification  of  it  is  pro- 
per or  necessary,  it  should  be  filed  in  the  office  of 
the  clerk  of  the  county  where  the  action  is  pend- 
ing. As,  in  the  case  of  the  complaint  and  answer, 
it  is  not  absolutely  necessary  to  file  the  reply,  if 
omitted  the  filing  may  be  enforced,  in  the  same 
way  that  the  filing  of  the  complaint  may  be  en- 
forced, as  to  which  see  ante  p.  109. 

Effect  of  reply.'] — The  reply  being  the  last  pleading 
of  fact  y  that  is  allowed,  it  is  intended  that  thereby 
the  issue  between  the  plaintiff"  and  the  defendant 
will  be  complete.  And  ordinarily  it  will  be  so  ;  and 
the  issue  thus  made  is  to  be  tried  by  a  jury,  or  by 
the  court  without  a  jury,  or  by  a  reference.  But  it 
may  be,  that  the  plaintiff",  in  his  reply,  has  alleged 
some  new  fact,  not  inconsistent  with  the  complaint, 
in  avoidance  of  one  or  more  of  the  defences  inter- 
posed by  the  defendant,  and  which  the  defendant 
wishes  to  con' rove rt. 

Under  the  former  practice,  the  pleading  did  not 
terminate,  until  the  last  pleading  took  issue  with 
the  immediately  preceding  one,  by  a  simple  denial. 
Hence  to  the  reply  there  was  a  rejoirider,  to  that  a 
rebutter,  and  to  that  a  surrebutter.  But  now,  in  anal- 
ogy to  the  practice  of  the  late  court  of  chancery, 
the  pleadings  end  with  the  reply,  and  the  defendant 


EFFECT  OF  NOT  REPLYING.  157 

cannot  controvert,  by  a  pleading,  any  new  matter  of 
fact,  set  lip  in  the  reply. 

The  defendant,  however,  is  not  concluded,  by 
any  new  matter  alleged  in  the  reply.  But  on  the 
trial,  he  may  countervail  it  by  proof,  either  in  direct 
denial  or  by  way  of  avoidance.     Code,  §  168. 

Effect  of  not  rephjing.]—U  new  matter  constituting 
a  defence,  be  set  up  in  the  answer,  the  plaintiff,  if 
he  do  not  demur  to  it,  must  reply;  for  if  he  fail  to 
do  so,  the  defendant  may  apply  to  the  court  or  to  a 
judge  thereof,  for  such  judgment  as  he  may  be  en- 
titled to  upon  the  complaint  and  answer ;  for  the 
effect  of  not  replying  is  to  admit  the  allegations 
contained  in  the  answer,  to  be  true.    Code,  §  154. 

For  this  purpose  a  notice  for  the  motion  must  be 
served  upon  the  plaintiff's  attorney  at  least  ten  days 
before  the  time  specified  for  making  the  motion, 
stating  the  time  and  place  and  the  name  of  the 
court  before  which  the  motion  will  be  made.  The 
object  of  the  motion  must  be  stated  in  the  notice, 
namely,  that  it  is  for  judgment  for  the  defendant 
upon  the  complaint  and  answer,  for  want  of  a  re- 
ply. 

If  the  court  is  satisfied  that  the  defendant  is  en- 
titled to  a  judgment,  an  order  may  be  entered 
accordingly,  and  the  defendant  may  enter  such 
judgment  as  he  is  entitled  to,  or  if  it  be  necessary, 
a  writ  of  inquiry  of  damages  may  be  ordered,  and 
the  defendant's  damages  are  assessed  by  a  j^iry  as 
in  other  cases. 

Replying  to  amended  answer?^ — The  defendant  after 
receiving  the  reply  is  allowed  to  amend  his  answer, 
(see  ante  p.  44)  which  he  must  do  within  tAventy 
days,  and  serve  a  copy  upon  the  plaintiff's  attorney. 


158  DEMURRER    TO    REPLY. 

If  he  do  so,  the  plaintiff  may  demur  or  answer 
anew,  in  the  same  manner  that  he  could  to  the  first 
answer.  The  demurrer  or  reply  must  be  served 
within  the  same  time  and  in  the  same  manner,  that 
is  required  in  the  demurrer  or  reply  to  the  first  an- 
swer. 

Demuirer  to  reply ^ — The  reply  of  the  plaintiff  hav- 
ing been  put  in,  the  defendant's  attorney  should  ex- 
amine it,  in  order  to  see  if  the  allegations  of  new 
matter  contained  in  it  are  sufficient  in  point  of  law,  to 
enable  the  plaintiff  to  sustain  his  action.  For  al- 
though the  defendant  may  not  controvert  the  facts 
alleged  in  the  reply,  hy  pleading  a  fact,  yet,  if  such  facts 
do  not  in  law  avoid  the  defence  interposed  by  the 
defendant,  he  may  demur.  Thus,  in  an  action  for 
the  recovery  of  real  property,  by  the  heir  at  law, 
claiming  it  by  inheritance,  the  defendant  answers, 
that  the  plaintiff's  ancestor  made  a  will,  by  which 
he  devised  the  premises  to  the  defendant,  and  the 
plaintiff  replies,  admitting  that  his  ancestor  made  an 
instrument  purporting  to  be  a  will,  but  that  such 
instrument  is  void,  not  having  the  necessary  num- 
ber of  attesting  witnesses,  to  wit,  only  two  witnesses. 
In  such  a  case,  it  being  a  question  of  law  merely, 
the  defendant  may  demur  to  the  reply,  by  which  he 
admits  that  the  will  has  but  two  attesting  witnesses, 
but  insisting  that  two  are  all  the  law  requires. 

The  defendant  can  only  demur  to  the  reply  for  in 
sufficiency,  {Code,  §  153,)  and  he  may  demur  to  a  part 
or  the  whole  of  it.  He  is  obliged  to  demur,  if  he 
intends  to  object  to  the  reply  as  being  insufficient ; 
for  by  not  demurring,  he  waives  all  right  to  object 
to  the  insufficiency  of  the  allegations  in  the  reply, 
on  the  trial. 


DEMURRER    TO    REPLY.  159 

The  grounds  of  the  demurrer  to  the  reply,  like  the 
grounds  of  demurrer  to  any  other  pleading,  must, 
in  like  manner,  be  clearly  and  distinctly  specified, 
and  it  may  be  set  aside  as  frivolous,  upon  motion, 
as  to  which  see  ante  p.  143. 


CHAPTER  V. 

[NGS  TO  TR] 
JUDGMENT. 


OF  THE  PROCEEDINGS  TO  TRIAL,  VERDICT  AND 


SECTION  II. 

Of  the  Issue. 

The  pleadings  in  the  action  having  terminated 
either  by  a  demurrer  or  by  a  reply,  so  tliat  there  is 
an  issue  of  law  or  of  fact,  or  both,  to  be  tried,  for 
the  purpose  of  settling  the  questions  involved  in  the 
action,  the  first  step  to  be  taken  is  to  determine  the 
manner  in  which  the  issue  is  to  be  disposed  of 

In  order  to  determine  the  manner  of  disposing  of 
the  case,  it  will  be  necessary  to  look  into  the  plead- 
ings to  ascertain  what  the  issue  is,  whether  of  law 
or  of  fact.  Issues  arise  only  upon  the  pleadings ; 
for  as  we  have  before  seen,  the  object  of  the  plead- 
ings being  to  bring  before  the  court  the  precise  na- 
ture of  the  plaintiff's  claim,  and  of  the  defendant's 
defence  thereto. 

Issues  arise  upon  the  pleadings,  when  a  fact  or 
conclusion  of  law  is  maintained  by  the  one  party, 
and  controverted  by  the  other.  They  are  of  two 
kinds-     Code,  §  248. 

1.  Of  law;  and, 

2.  Of  fact. 

As  the  issue  of  law,  if  one  arises,  must  ordinarily 


THE   ISSUE.  161 

be  disposed  of,  before  the  issue  of  fact,  it  will  be 
proper  to  speak  of  the  former  issue  first. 

Issues  of  law.] — An  issue  of  law  arises,  upon  a  de- 
murrer to  the  complaint,  answer  or  reply,  or  to  some 
part  thereof.  There  may  be  a  case  where  issues  of 
law  and  of  fact  both  arise,  as  where  there  is  a  de- 
murrer to  a  part  of  the  complaint,  and  an  answer 
to  the  residue.  Here  the  demurrer  raises  a  question 
or  issue  of  law,  and  the  answer  a  question  or  issue 
of  fact.  In  such  a  case  they  cannot  be  tried  at  the 
same  time,  but  the  demurrer  should  be  first  dis- 
posed of 

There  are  other  cases,  besides  demurrers,  where 
issues  of  law  may  arise,  as  where  the  complaint 
does  not  state  facts  sufficient  to  constitute  a  cause  of 
action,  or  where  the  court  has  no  jurisdiction  of  the 
person  of  the  defendant  or  the  subject  of  the  action; 
in  these  cases,  as  we  have  seen,  the  party  may  de- 
mur, or  he  may  take  advantage  of  the  objection 
upon  the  trial.  In  the  latter  case  it  is  an  issue  of 
law,  and  is  generally  tried  at  the  same  time  with 
the  issue  of  fact. 

The  court  has  the  power  to  direct  the  issue  of  fact 
to  be  first  disposed  of,  and  in  some  cases  will  do  so, 
for  the  convenience  of  the  parties.  Thus  the  court 
will  direct,  in  some  cases,  that  the  damages  in  the 
action  be  assessed,  reserving  the  question  of  law  to 
be  afterwards  determined.  Code,  §  251. 

Issues  of  fad.] — Issues  of  fact  arise,  whenever  a 
material  allegation  in  the  complaint  is  controverted 
by  the  answer,  or  where  new  matter,  by  way  of  de- 
fence, is  set  up  in  the  answer,  and  controverted  by 
the    reply,   or  where  new  matter,  not  inconsistent 

with  the  complaint,  is  set  up  in  the  reply.    If,  how- 

11 


162  EXAMINATION    ON    COMMISSION. 

ever,  the  new  matter  set  np  in  the  reply  is  demurred 
to  as  insufficient,  then  as  to  that,  an  issue  of  law 
and  not  of  fact  is  formed. 

As  we  have  seen,  in  general,  the  issue  of  fact  is 
not  to  be  tried,  until  after  the  demurrer  or  the  issue 
of  law  is  tried.  But  the  court  may  order  them  to 
be  tried  at  the  same  time. 

SECTION   TI. 

Of  the  Examination  of  Writings. 

In  order  to  avoid  the  expense  of  proving  a  paper 
material  to  the  action,  it  is  provided,  {Code,  §  388,) 
that  either  party  may  exhibit  to  the  other,  or  to  his 
attorney,  at  any  time  before  the  trial,  any  paper  ma- 
terial to  the  action,  and  request  an  admission  in 
writing,  of  its  genuineness.  If  the  adverse  party,  or 
his  attorney,  fail  to  give  that  admission  within  four 
days  after  the  request,  and  if  the  party  exhibiting 
the  paper,  be  afterwards  put  to  expense  in  order  to 
prove  its  genuineness,  and  the  same  be  finally  prov- 
ed or  admitted  on  the  trial,  such  expense,  to  be  as- 
certained at  the  trial,  shall  be  paid  by  the  party 
refusing  the  admission ;  unless  it  appear,  to  the  sat- 
isfaction of  the  court,  that  there  were  good  reasons 
for  the  refusal. 

SECTION  III. 

Examination   of    AVitnesses  de  bene  esse  and   upon 
Commission,  and  of  Parties,  before  the  Trial. 

Examination  on  commission.^ — In  case  a  witness, 
whose  testimony  may  be  deemed  material,  reside 


tXAMINATION   DE   BENE    ESSE.  163 

'out  of  the  state,  either  party  desiring  to  ohtain  his 
testimony,  may  apply  to  the  court  in  which  the  ac- 
tion is  pending,  or  to  a  judge  thereof,  for  a  commis- 
sion, to  be  directed  to  one  or  more  competent  per- 
sons to  take  the  testimony  of  such  witness  on  oath, 
upon  interrogatories  to  be  annexed  to  the  commis- 
sion. 

The  application  for  a  commission  cannot  be  made 
until  after  the  answer  is  put  in,  but  it  should  be 
made  the  earliest  opportunity  after  the  issue  is  join- 
ed, for  if  it  is  delayed  the  court  or  judge  to  whom 
the  motion  is  made,  may  not  stay  the  trial  to  have 
the  commission  returned.  2  Rev.  Stat.,  315,  §  19. 

As  the  practice  upon  the  subject  of  issuing  and 
returning  the  commission  and  its  incidents,  are  not 
affected  or  in  any  way  altered  by  the  Code,  it  is  un- 
necessary to  do  more  than  to  refer  to  the  books  of 
practice  in  the  late  Supreme  Court,  for  a  guide. 

Examination  de  bene  esse.] — Where  a  witness  whose 
testimony  is  important  on  either  side,  is  about  to 
leave  the  state,  either  not  to  return  at  all,  or  not  to 
return  in  season  to  be  examined  on  the  trial :  or  if 
a  witness  is  so  sick  or  infirm,  as  to  render  it  impro- 
bable that  he  will  be  ab*le  to  appear  on  the  trial, 
either  party,  desiring  to  obtain  the  testimony  of 
such  witness,  may  apply  to  the  court  in  which  the 
action  is  pending,  or  to  a  judge  thereof,  for  permis- 
sion to  take  the  testimony  of  such  witness,  de  bene 
esse,  that  is,  conditionally;  to  be  used  only  in  case 
the  personal  attendance  of  such  witness  cannot  be 
procured  on  the  trial. 

This  motion  may  be  made  at  any  time,  after  the 
action  is  commenced.  2  Rev.  Stat.,  312,  §  J,  2. 


164  EXAMINATION    OF    A   PARTY. 

The  practice  of  obtaining  the  order  for  the  exami- 
nation of  a  witness  de  bene  esse,  and  the  manner  of 
taking  the  testimony,  is  the  same  as  before  the  pas- 
sage of  the  Code  of  Procedure. 

Examination  of  a  party.] — The  right  to  examine  a 
party  to  the  action,  as  a  witness  against  himself,  was 
never  allowable  before  the  act  of  1847.  Sess.  Laws 
1847,  p.  630.     It  is  now  incorporated  in  the  Code. 

Heretofore,  when  it  was  important  to  compel  the 
adverse  party  to  disclose  facts,  necessary  to  sustain 
the  action  or  the  defence,  it  could  be  obtained  only 
by  a  bill  of  discovery,  filed  in  the  Court  of  Chancery 
in  aid  of  the  prosecution  or  defence  of  the  action  at 
laAv.  In  such  a  case,  a  bill  might  be  filed,  praying 
for  a  discovery  upon  oath  from  the  adverse  party  of 
the  facts  alleged  in  the  bill,  to  be  within  the  person- 
al knowledge  of  such  adverse  party,  and  an  answer 
under  oath  could  be  required.  Upon  the  trial  of  the 
action  at  law,  the  answer  could  be  read  in  evi- 
dence. 

No  bill  can  now  be  filed,  or  action  instituted  to 
obtain  a  discovery  under  oath,  in  aid  of  the  prose- 
cution or  defence  of  another  action.  Code  §  389. 

Instead,  however,  of  a  Bill  of  discovery,  as  form- 
erly used,  the  examination  of  the  party  either  be- 
fore or  at  the  trial  is  now  allowed. 

For  this  purpose  it  is  provided  {Code  §  390,)  that 
"  a  party  to  an  action  may  be  examined  as  a  witness, 
at  the  instance  of  the  adverse  party  or  of  any  one  of 
several  adverse  parties.'' 

If  the  adverse  party,  whom  it  is  desired  to  exam- 
ine reside  out  of  the  state,  his  testimony  can  only  be 
procured  upon  a  commission.     The  commission  is  pro 


EXAMINATION    OF    A    PARTY.  165 

'cure-d,  as  in  other  cases  of  non-resident  witnesses, 
and  the  proceedings  under  it  are  in  all  respects  the 
same.  Brocklej/Y.  Stanton,  1  Code  Rep.  12S. 

The  examination  oi^  a  party  is  conducted  in  the 
same  manner,  and  is  subject  to  the  same  rule,  as  in 
the  case  of  any  other  witness.  The  party  seeking 
the  examination  of  the  adverse  party,  goes  through 
with  the  examination,  and  then  he  may  be  exam- 
ined in  his  own  behalf,  in  respect  to  any  matter 
pertinent  to  the  issue,  that  is,  he  may  be  examined 
upon  a  matter  which  the  party  calling  him  has  not 
gone  into,  provided  it  be  pertinent  to  the  subject  of 
the  action  and  the  issue  formed  between  the  parties. 
In  like  mariner  as  other  witnesses,  he  may  be  cross- 
examined  by  his  own  attorney  or  counsel,  as  to  the 
m^atter  of  his  direct  examination. 

If,  however,  in  testifying  to  any  new  matter,  his 
answers  are  not  responsive  to  the  inquiries  put  to 
him,  by  the  party  calling  him ;  that  is,  if  it  be  upon 
a  new  subject,  not  gone  into  by  such  party;  or,  if 
his  answers  are  not  necessary  to  explain  or  qualify 
his  direct  examination,  then  the  party  calling  him, 
may  offer  himself  as  a  witness  on  his  own  behalf, 
and  may  be  examined  in  respect  to  such  new  mat- 
ter. Thus,  if  the  defendant  calls  the  plaintiff  as  a 
witness  in  an  action  arising  on  contract,  to  prove 
that  the  promise  was  not  made  within  six  years 
next  before  the  commencement  of  the  suit,  the 
plaintiff's  attorney  or  counsel  may  cross  examine 
him,  as  to  such  fact,  and  then  may  prove  by  him 
that  the  defendant  made  a  new  promise  within  the 
six  years.  This  would  be  new  matter,  and  the  de- 
fendant would  be  authorised  to  offer  himself  on  his 
own  behalf,  and  be  examined  as  to  the  new  promise. 


166  EXAMINATION    BEFORE    THE   TRIAL, 

In  case  of  two  or  more  plaintiffs  or  defendants, 
if  one  of  the  plaintiffs  desires  to  examine  his  co- 
plaintiff,  or  one  of  the  defendants  desires  to  exam- 
ine his  co-defendant,  he  may  do  so.  The  examina- 
tion is  conducted  in  the  same  manner  as  other  wit- 
nesses, and  the  same  rules  govern.  But  such  ex- 
amination or  evidence,  cannot  be  used  on  behalf  of 
the  party  examined.  And  where  there  are  several 
plaintiffs  or  defendants  who  are  joint  contractors  or 
are  united  in  interest,  and  only  one  of  such  plaintiffs 
or  defendants  is  examined  at  the  instance  of  the  ad- 
verse party,  the  remaining  co-plaintiffs  or  co-defend- 
ants may  be  examined  in  their  own  behalf  to  the 
same  cause  of  action  or  defence.  Code,  §  397.  Thus, 
in  an  action  brought  by  co-partners,  who  are  united 
in  interest,  and  one  of  the  co-partner  plaintiffs  is  ex- 
amined as  a  witness  by  the  defendant,  the  other  co- 
partner plaintiffs  may  offer  themselves  as  witnesses 
and  be  examined  in  respect  to  the  cause  of  action, 
for  which  the  suit  is  brought. 

So,  a  person  for  whose  immediate  benefit  the  ac- 
tion is  prosecuted  or  defended,  though  not  a  party 
to  the  action,  may  be  examined  as  a  witness,  in  the 
same  manner,  and  subject  to  the  same  rules  of  ex- 
amination, as  if  he  were  named  as  a  party. 

Examination  before  the  trial] — If  the  party  whose 
examination  as  a  witness  is  sought  to  be  had,  reside 
out  of  the  state,  it  can,  as  we  have  seen,  {ante  p.  164) 
only  be  had  upon  a  commission  issued  in  the  ordin- 
ary way.  If  such  party  reside  in  some  county  other 
than  that  in  which  the  trial  is  to  be  had,  he  cannot 
be  examined  before  the  trial  in  any  other  county, 
than  that  of  his  residence,  or  where  he  may  be  at 
the  time  he  is  summoned  to  appear.     Thus,  if  the 


THE     EXAMINATION.  167 

action  is  to  be  tried  in  Greene  county,  and  the  party 
to  be  examined,  resides  in  Schoharie  county,  he 
cannot  be  compelled  to  attend  and  be  examined  in 
Greene.  If,  however,  he  can  be  found  in  Greene 
county,  he  may  then  be  summoned  to  appear  before 
the  judge  in  that  county,  and  submit  to  his  exami- 
nation.  Code,  §  391. 

If  the  party  wishes  the  examination  before  the 
trial,  he  must  give  a  notice  in  writing  to  the  adverse 
party  of  at  least  ^iye  days  before  the  time  specified  in 
the  notice  for  the  examination  to  take  place,  requir- 
ing such  adverse  party  to  appear  before  a  judo-e  of 
the  court  in  which  the  action  is  pending,  or  bef  re 
a  county  judge,  and  submit  to  an  examination.  The 
notice  must  state  the  time  and  place  and  name  of 
the  judge  before  whom  the  examination  will  be  had. 

This  notice  must  be  served  upon  the  party  and  it 
is  not  sufficient  to  serve  it  upon  his  attorney.  And 
where  there  are  several  adverse  parties,  the  notice 
must  be  served  upon  all,  notwithstanding  it  is  the 
intention  to  examine  only  one.  (For  form  of  notice 
see  Appendix.) 

As  has  been  before  stated,  the  party  to  be  exa- 
mined, cannot  be  required  to  attend  before  a  iudo-e 
out  of  the  county  of  his  residence  or  where  he  may 
be  at  the  time  the  notice  is  served  upon  him. 

The  examination.^ — The  examination  of  a  party  be- 
fore trial,  is  to  be  conducted  in  all  respects  as  the 
examination  of  a  witness  de  bene  esse.  It  should  be 
reduced  to  writing  by  the  judge,  and  carefully  read 
over  to  the  party,  who  then  must  subscribe  it.  The 
judge  or  officer  who  takes  the  examination,  should 
certify  to  it,  and  deliver  it  to  the  attorney  of  the 
party  who  applied  for  the  examination,  and  direct  it 


163  THE    EXAMINATION. 

to  be  filed  in  the  proper  county.  The  examination 
thvTS  taken,  subscribed  and  certified,  should  be  filed 
with  the  clerk  of  the  county  where  the  action  is 
pending,  within  ten  days  afterwards.  2  Rev.  Stat. 
313,  §6. 

The  testimony  of  the  party  thus  taken,  may  be 
read  as  evidence  on  the  trial,  notwithstanding  he 
may  be  present.  It  does  not  prevent,  however,  his 
being  examined  at  the  trial,  if  the  adverse  party  de- 
sire to  examine  him.  But  the  adverse  party  cannot 
do  both  ;  that  is  he  cannot  read  his  testimony  taken 
before  the  judge,  and  examine  him  at  the  trial.  His 
examination  before  the  judge  being  taken  condition- 
ally {Code  §  390)  it  cannot  be  used  for  any  purpose, 
if  he  is  examined  at  the  trial. 

Examination  at  the  trial. 1 — The  attendance  of  the 
party  for  the  purpose  of  testifying  at  the  trial,  is 
compelled  in  the  same  manner  as  other  witnesses. 
For  which  purpose,  a  s,ummons  to  testify  is  served 
upon  him,  and  his  fees  for  attendance  and  travel 
should  be  paid.  If  the  party  reftise  to  attend  and 
testify,  either  at  the  trial  or  before  the  judge,  he 
may  be  punished  as  for  a  contempt,  and  upon  proof 
of  the  service  of  the  notice  or  summons,  the  court 
or  judge  will  grant  an  order  to  arrest  and  bring  be- 
fore the  court  or  judge  such  party,  who  may  be 
punished  by  fine,  or  imprisonment  in  the  county 
jail,  in  the  discretion  of  the  court  or  judge.  2  Rev. 
Stat.,  278,  §§  10,  11;  id   400,  §§  43,  47. 

Effect  of  examination  of  party.] — The  testimony  of  a 
party,  whether  taken  before  a  judge,  or  at  the  trial, 
is  not  conclusive  upon  the  party  who  obtained  the 
examination,  but  like  other  testimony,  it  may  be 


PREPARATION    FOR    TRIAL.  169 

rebutted  by  adverse  testimony.  And  the  examining 
party  will  be  allowed,  on  the  trial,  to  disprove  the 
evidence  of  the  party  he  has  examined,  in  the  same 
manner  that  he  may  disprove  the  testimony  of  a 
witness  called  by  himself,  although  he  will  not  be 
permitted  to  impeach  the  credibility  of  the  party 
he  has  examined.  Cudc^  §  o93. 

By  the  provisions  of  the  Code,  the  examination  of 
a  party,  as  a  witness  in  the  action,  at  the  instance 
of  the  adverse  party,  is  placed  upon  an  equal  foot- 
ing with  the  examination  of  ordinary  witnesses; 
and  it  may  in  general  be  said,  that  with  the  excep- 
tions which  have  been  above  stated,  all  the  rules 
that  have  heretofore  prevailed  in  respect  to  the  ex- 
amination of  ordinary  witnesses,  are  made  to  apply 
to  examinations  of  parties.  As  that  is  a  subject 
more  properly  belonging  to  a  treatise  on  evidence, 
than  to  a  work  on  practice,  any  further  notice  of  it 
here,  can  well  be  dispensed  with. 

SECTION  IV. 
Of  the  Preparation  for  Trial. 

As  has  been  seen,  all  issues  must  be  tried  by  the 
court,  or  by  a  jury,  or  by  a  reference.  If  the  issue 
be  one  of  law,  it  must  be  tried  by  the  court;  if  of 
fact,  it  may  be  tried  by  the  court  without  a  jury,  or 
by  a  jury,  or  by  a  reference. 

These  different  modes  of  trial  will  be  subsequent- 
ly noticed,  under  separate  heads. 

Issues  how  tried.] — If  the  action  be  for  the  recov'ery 
of  money  only,  or  for  the  recovery  of  specific  real 
or  personal  property,  and  there  is  an  issue  of  fact 


170  NOTICE    OF    TRIAL. 

formed  by  the  pleadings,  it  must  be  tried  by  a  jury, 
unless  a  jury  trial  is  waived,  which  may  be  done, 
in  the  manner  hereafter  stated  under  the  head  of 
"  Trial  by  the  court  without  a  jury."  See  post. 
The  class  of  actions  which  must  thus  be  tried  by  a 
jury,  unless  a  jury  trial  is  waived,  are  such  as  arise 
upon  contracts,  express  or  implied,  for  the  payment 
of  money  only,  and  actions  sounding  in  damages, 
for  torts,  such  as  trespass  to  property  or  to  the  per- 
son, libel,  slander,  malicious  prosecution,  and  the 
like,  and  actions  for  the  recovery  of  real  or  personal 
property. 

All  other  issues,  whether  of  law  or  fact,  are  triable 
by  the  court  without  a  jury.  The  court  may,  how- 
ever, order  the  whole  issue,  or  any  part  of  it,  or  any 
specific  question  of  fact  involved  therein,  to  be  tried 
by  a  jury,  or  may  order  it  to  be  referred.  Code,  §  254. 

All  issues,  whether  of  law  or  fact,  and  whether 
triable  by  the  court  or  by  a  jury,  must  be  tried  be- 
fore a  single  judge.  Issues  of  fact  are  to  be  tried  at 
the  circuit  court,  and  issues  of  law  are  to  be  tried  at 
the  special  term  only.  Rule  31. 

TRIAL    OF   ISSUES    OF   FACT. 

Notice  of  trial] — Having  determined  where  the 
issue  is  to  be  tried,  i.  e.,  at  what  circuit  court,  the 
next  step  to  be  taken,  is  to  prepare  the  notice  of 
trial.  Either  party  may  notice  the  cause  for  trial. 
The  notice  must  specify  the  lime  and  place  of  the 
trial:  it  must,  like  all  other  notices,  be  in  writing, 
and  subscribed  by  the  attorney  for  the  party  giving 
the  notice.  In  the  notice  served  by  the  plaintiff's 
attorney,  if  he  thinks  the  defence  has  been  put  in 


COPY   PLEADINGS.  171 

merely  for  delay,  he  may  insert  in  his  notice  of  trial, 
whr;n  there  is  an  issu?  of  fact  formed  by  the  plead- 
ings, a  notice  that  an  inquest  will  be  taken,  which 
gives  him  the  right  to  take  the  cause  .out  of  its  or- 
der on  the  calendar,  and  obtain  a  verdict  in  a  sum- 
mary way.   Jones  vs.  Russell,  1  Code  Rep.,  113. 

The  defendant  may  always  prevent  an  inquest,  by 
filing  an  affidavit  of  merits.   Rule  1 2. 

If  the  action  be  against  two  or  more  defendants, 
and  some  have  not  answered,  the  notice  should  ex- 
press the  plaintiff's  intention  to  have  the  damages 
assessed  by  the  jury  who  try  the  issue  against  such 
defendants  as  have  not  answered.  The  notice  nust 
be  served  at  least  fen  days  before  the  first  day  of  the 
sittino-  of  the  court,  when  the  issue  is  to  be  tried. 
In  computing  the  time,  the  first  day  is  to  be  inclu- 
ded, and  the  last  or  tenth  day  excluded;  so  that  a 
notice  served  on  the  first,  for  the  eleventh  day  of  the 
month  will  be  sufficient.  If  the  attornies  for  the  re- 
spective parties  reside  in  different  places,  between 
which  there  is  a  mail  communication,  the  service 
of  the  notice  may  be  made  by  mail,  in  which  case 
it  must  be  double  the  usual  time,  i.  e.  tiventy  days,  to 
•ba  compnted  as  above.  As  to  the  particular  mode 
of  service,  see  post. 

Copy  pleadings.'] — It  is  the  duty  of  the  plaintifl''s 
attorney  to  furnish  the  court,  at  the  commence- 
ment of  the  court,  or  at  the  commencement  of  the 
trial,  with  a  copy  of  the  pleadings  in  the  action. 
For  this  purpose,  he  must  prepare  a  copy  of  the  sum- 
mons, complaint,  answer  and  reply,  if  any  have  been 
put  in,  together  with  a  copy  of  the  offer  made  by  the 
defendant,  if  it  shall  have  been  accepted  by  the  plain- 


172  AFFIDAVIT    OF   MERITS. 

tiff,  and  hand  them  to  the  clerk  of  the  court,  at  or 
before  the  commencement  of  the  trial. 

Note  of  iiiBue.\ — Either  party  having  noticed  the 
cause  for  trial,  may  prepare  and  deliver  to  the  clerk 
of  the  county,  where  the  trial  is  to  take  place,  a  note 
of  the  issue.  This  must  be  served  upon  the  clerk  at 
least  four  days  before  the  first  day  of  the  sitting  of 
the  court.  It  m.ust  contain  the  title  of  the  cause,  i.  e. 
the  names  of  the  plaintiff  and  defendant,  and  the 
names  of  their  respective  attornies,  and  the  time 
when  the  last  pleading  was  served  or  received. 
Code  §  250. 

Affidavit  of  merits. 1 — If  the  notice  of  trial  served  by 
the  plaintiff",  expresses  an  intention  to  take  an  in- 
quest, and  the  defendant  wishes  to  prevent  it,  his  at- 
torney must  prepare  an  affidavit  of  merits.  In  gene- 
ral, this  affidavit  must  be  made  by  the  defendant 
himself,  though  in  case  of  his  absence  it  may  be 
made  by  his  attorney  or  counsel.  1  How.  Pr.  Rep, 
62;  2  Id.  124.  But  in  this  case  it  should  contain  a 
sufficient  excuse  for  not  being  made  by  the  defend- 
ant. The  affidavit  is,  that  the  defendant  has  fully 
and  fairly  stated  the  case  to  his  counsel,  naming 
him,  and  specifying  his  place  of  residence,  and  that 
he  has  a  good  and  substantial  defence  on  the  merits 
as  he  is  advised  by  his  counsel,  after  such  statement 
and  verily  believes  to  be  taie.     Rule  39. 

The  affidavit  having  been  drawn  and  sworn  to, 
should  be  filed  with  the  clerk  of  the  county  where 
the  trial  is  to  be  had,  and  a  copy  served  on  the  plain- 
tiff's attorney. 

Notice  to  produce  papers.'] — When  a  paper  is  in  the 
posset-sion  of  the  opposite  party,  which  it  is  deemed 
necessary  to  use  on  the  trial  of  the  cause,  a  notice 


SUBPCENA    OF    WITNESSES.  173 

should  be  prepared  and  served  on  the  attorney  for 
the  opposite  party,  requiring-  liim  to  produce  such 
paper  on  the  trial, or  that  parol  or  secondary  evidence 
of  its  contents  will  be  given.  The  notice  should  de- 
scribe the  paper,  with  sufficient  certainty  and  par- 
ticularity to  enable  the  party  to  know  what  is  inten- 
ded. 

The  notice  shovild  be  served  a  reasonable  time  be- 
fore the  trial,  to  enable  the  party  to  bring  it  into 
court;  what  is  a  reasonable  time,  is  a  question  rest- 
ing in  the  discretion  of  the  judge. 

Subp(2nafor  ivitnesses.] — The  subpoena,  or  as  it  may 
more  properly  be  called,  the  summons,  to  compel  the 
attendance  of  witnesses,  in  a  process  issued  out  of 
the  court  in  which  the  action  is  pending,  requiring  the 
persons  named  in  it  to  appear  at  the  circuit  court  on 
a  certain  day  specified,  to  testify  in  the  action,  under 
a  penalty  therein  mentioned,  in  case  of  disobedience. 
It  is  tested  in  the  name  of  the  presiding  justice  of 
the  district,  or  of  one  of  the  justices  of  the  court, 
subscribed  by  the  clerk  of  the  county  where  the 
cause  is  to  be  tried,  and  by  the  attorney  for  the  par- 
ty who  issues  it,  and  should  be  sealed.  It  will  how- 
ever be  sufficient  Avithout  a  seal. 

SubpcEJia  ticket.] — Make  out  a  ticket,  containing  the 
substance  of  the  subpoena,  subscribe  it  with  the 
name  of  the  attorney  who  issues  the  subpoena,  and 
direct  it  to  the  witness.  There  must  be  a  separate 
ticket  for  each  witness.  One  subpoena,  however, 
will  be  sufficient  for  several  witnesses. 

Serving  subpoena.] — The  subpoena  is  served  in  the 
following  manner :  the  original  subpoena,  under  the 
seal  of  the  court,  must  be  exhibited  to  the  witness, 


174  SUBPOENA   DUCES    TECUM. 

aiid  a  ticket  containing  its  substance,  must  be  de* 
livered  to  him  at  the  same  time,  and  the  fees,  al- 
lowed by  law,  for  travelling  to  and  returning  from 
the  place  where  he  is  requi.ed  to  attend,  together 
with  the  fees  for  one  day's  attendance,  must  be  paid 
or  tendered  at  the  time  of  service.  2  Rev.  Stat.,  321, 
§  54.  The  subpoena  should  be  served  a  reasonable 
time  before  the  session  of  the  court.  The  witness 
is  entitled  to  a  reasonable  time  for  travel,  availing 
himself  of  the  ordinary  modes  of  conveyance.  He 
cannot  limit  his  travelling  to  thirty  miles  a  day,  nor 
can  he  be  required  to  travel  on  Sundays.  13  Wen- 
dell, 49. 

A  party,  whom  it  is  designed  to  examine  as  a 
witness  at  the  trial,  must  be  subpoenaed  iii  the  same 
manner  as  other  witnesses,  or  he  will  not  be  re- 
quired to  attend.  Code,  §  390. 

Subpczfia  duces  tecu?n.] — If  the  witness  have  in  his 
possession  any  deeds  or  writings,  which  it  may  be 
necessary  to  produce  on  the  trial,  the  subpoena  for 
such  witness  must  contain  a  clause,  commanding 
such  witness  to  bring  the  papers  with  him,  and 
produce  them  on  the  trial. 

The  deed  or  writing  to  be  produced,  must  be  de- 
scribed with  sufficient  certainty  to  enable  the  wit- 
ness to  know  what  is  intended. 

SECTION  V. 

Of  Inquests. 

If  the  cause  has  been  noticed  for  trial  as  an  in- 
quest, and  the  defendant  does  not  file  and  serve  a 
sufficient  affidavit  of  merits,  on  or  before  the  first 


TRIAL    BY    THE   COURT.  175 

day  of  the  circuit,  the  cause  may  be  tried  as  an  in- 
quest, out  of  its  orJer  on  the  calendar.  To  prevent 
an  inquest  at  the  circuit,  as  we  have  seen,  ante  p. 
172,  an  affidavit  of  merits  must  be  served.  Upon 
an  inquest,  the  defendant  is  precluded  from  making 
a  defence,  in  the  ordinary  manner.  Rule  12. 

An  inquest  may  be  taken  on  any  day  after  the  first 
day  of  the  circuit,  immediately  after  the  opening  of 
the  court,  {Rule  12,)  but  not  after  the  trial  of  a  liti- 
gated cause  has  commenced.  9  Wendell,  451. 

Judgment  is  perfected  upon  an  inquest,  in  the 
same  manner  as  upon  a  common  verdict.  As  to 
which  see  post. 

A  plaintiff,  who  has  regularly  obtained  an  in- 
quest, is  not  bound  to  waive  it,  on  the  application 
of  the  defendant,  but  may  put  him  to  his  motion  to 
set  it  aside.  12  Wendell,  1 98. 

Upon  an  inquest,  the  defendant  has  a  right  to  ap- 
pear, and  cross-examine  the  plaintiff's  witness;  but 
he  cannot  prove  a  defence  by  them,  nor  examine 
witnesses  on  his  own  behalf  He  may,  however, 
object  to  the  plaintiff's  evidence,  and  except  to  the 
judge's  opinion  as  in  ordinary  cases.  So,  the  plain- 
tiff may  be  non-suited  if  he  fail  to  make  out  his  case. 

SECTION  VI. 

Of  the  Trial  by  the  Court. 

The  power  to  try  issues  of  fact  without  a  jury, 
was  conferred  upon  the  judge  or  officer  holding  the 
court,  by  the  act  of  1847.  Scss.  Laws  1847,  p.  345, 
§  80.    The  same  power  has  since  been  continued  by 


176  TRIAL    BY    THE    COURT. 

the  Code.  Code,  §  266.  It  is  now  provided  that  trial 
by  jury  may  be  waived  by  the  several  parties  to  an 
issue  of  fact,  in  any  action.  The  action,  however, 
must  be  one  arising  on  contract,  otherwise  a  jury 
cannot  be  waived  without  the  consent  of  the  court. 
Hence,  in  actions  to  recover  damages,  which  do  not 
grow  out  of  a  contract,  express  or  implied,  such  as 
actions  for  assault  and  battery,  slander,  trespass,  and 
the  like,  a  jury  trial  cannot  be  waived,  without  the 
consent  of  the  court. 

In  the  cases  above  piovided,  a  jury  may  be  waiv- 
ed in  the  following  manner: 

1.  By  failing  to  appear  at  the  trial.  Where  a 
cause  is  called  in  its  regular  order  on  the  calendar, 
and  the  defendant  fails  to  appear,  the  action  may 
be  tried  by  the  court,  without  a  jury.  But  it  is  only 
in  cases  of  the  regular  call  of  a  cause,  that  a  jury 
may  be  waived.  Therefore,  in  inquests,  when  the 
cause  is  taken  out  of  its  order  on  the  calendar,  a 
jury  must  be  empannelled  in  the  usual  manner. 
Dickinson  vs.  Kimball,  1  Code  Rep.,  83.  And  the  mere 
failure  of  the  defendant  to  appear,  does  not  authorize 
the  waiving  of  a  jury.  Ibid. 

2.  By  written  consent,  in  person  or  by  attorney, 
filed  with  the  clerk. 

3.  By  oral  consent  in  open  court,  entered  in  the 
minutes. 

The  trial'] — The  trial  before  the  court,  without  a 
a  jury,  is  conducted,  in  all  respects,  in  the  same 
manner  as  trials  by  a  jury.  The  counsel  for  the 
party  who  holds  the  affirmative  of  the  issue,  opens 
the  case,  and  introduces  his  evidence;  the  adverse 
party  then  examines'his  witnesses,  and  the  case  is 


THE   DECISION.  177 

submitted  to  the  judge.     As  to  the  manner  of  trying 
jury  eauses,  see  post. 

The  decision.'] — The  judge  or  justice  who  tries  the 
issue  of  fact  without  a  jury,  must  give  his  decision 
within  twenty  days  after  the  adjournment  of  the 
court,  at  which  the  trial  took  place.  Code,  §  267. 
The  decision  must  be  in  writing,  and  subscribed  by 
the  judge  or  justice  who  tried  the  cause.  The  de- 
cision is  in  form  like  the  report  of  a  referee.  It  is 
not  necessary  to  state  the  facts  found,  nor  the  con- 
clusions of  law  upon  them,  but  simply  the  result  to 
which  the  judge  has  arrived  upon  the  whole  case. 
Thus,  that  the  plaintiff  is  entitled  to  recover  from 
the  defendant  the  sum  of  five  hundred  dollars ;  or, 
that  the  plaintiff  is  entitled  to  recover  the  possession 
of  the  real  or  personal  property,  mentioned  in  the 
complaint;  or  that  he  finds  in  favor  of  the  defend- 
ant, and  the  like.  But  the  facts  established  by  the 
evidence,  on  the  trial,  or  the  conclusion  of  law  upon 
them,  need  not  be  stated  in  the  deci??ion. 

The  decision  must  not  only  be  made,  but  must 
also  be  filed  with  the  clerk  of  the  county  where  the 
action  was  tried,  within  twenty  days  after  the  court 
at  which  the  trial  took  place.  No  judicial  construc- 
tion has  been  given  to  the  section  of  the  Code  di- 
recting the  decision  of  the  judge  to  be  made  and 
filed  wilhin  twenty  days  after  the  adjournment  of 
the  court,  at  which  the  trial  took  place,  but  it  is  pre- 
sumed that  it  will  be  construed  to  be  directory  mere- 
ly, and  that  a  decision  made  after  twenty  days,  will 
under  peculiar  circumstances,  and  when  a  good  ex- 
cuse is  furnished,  be  upheld  as  regular. 


178  TRIAL    BY   JURY. 

Issues  of  laiv.] — As  has  been  seen,  {ante  p.  169)  issues 
of  law,  are  in  all  cases  to  be  tried  by  the  court, 
without  a  jury.  In  such  cases  if  the  decision  of 
the  judge  is  in  favor  of  the  plaintiff,  judgment  is  en- 
tered theroen,  in  the  same  manner  as  upon  failure 
to  answer  the  complaint.  See  ante, p.  120.  If  the  de- 
cision be  for  the  defendant,  judgment  is  entered  ac- 
cordingly, unless  the  taking  of  an  account  or  the 
proof  of  some  fact  is  necessary  to  enable  the  court 
to  complete  the  judgment ;  as,  where  in  actions  to 
recover  the  possession  of  personal  property,  and  the 
property  has  been  delivered  to  the  plaintiff,  the  de- 
fendant, if  he  succeeds  is  entitled  to  recover  dama- 
ges for  the  taking  and  detention  of  the  property.  In 
such  case  the  court  would  require  proof  of  the 
damages,  before  it  could  complete  its  judgment.  Or, 
where  the  defendant  has  been  restrained  from  doing 
some  act,  by  which  he  has  sustained  damage.  In 
these  and  similar  cases  the  court  may  order  a  refe- 
rence, or  that  a  writ  of  inquiry  be  issued  to  ascer- 
tain and  assess  the  damages  of  the  defendant.  And 
upon  the  filing  of  the  report  of  the  referee,  or  inqui- 
sition of  the  sheriff,  a  judgment  for  such  damages, 
with  the  costs  and  disbursements  to  which  the  de- 
fendant is  entitled,  may  be  entered.  As  to  trial  of 
issues  of  law,  see  post. 

SECTION  VII. 

Of  the  Trial  by  Jury. 

Either  party  having  noticed  the  cause  for  trial, 
and  put  it  upon  the  calendar,  may  bring  the  issue 
to  trial. 


TRIAL    BY    JURY.  179 

The  jury  are  drawn  in  the  usual  manner.  They 
may  be  challenged  by  either  party  for  cause  or  fa- 
vor, and  in  addition,  either  party  may  exclude  two 
of  the  persons  drawn,  by  a  peremptory  challenge. 
Sess.  Laws  1847,  chap.  134,  §  1.  The  challenges  of 
the  jurors  must  be  made  before  the  trial  is  com- 
menced, and  it  will  be  too  late  after  verdict.  1 
How.  Pr  Rep.  1 75. 

Opening  the  case.] — It  is  necessary,  at  the  com- 
mencement of  the  trial,  to  determine  which  party 
holds  the  affirmative  of  the  issue ;  that  is,  which 
party  has  the  right  to  open  and  close  the  case. 
This  can  only  be  determined  from  the  pleadings. 
Ordinarily,  the  plaintiff,  holds  the  affirmative,  but 
not  unfrequently,  the  defendant  may.  Thus,  in  an 
action  upon  a  promissory  note,  the  defendant  in  his 
answer,  sets  up  payment,  or  usury,  or  the  statute  of 
limitations,  or  infancy,  or  any  other  defence  which 
goes  in  avoidance  of  the  action,  and  the  plaintiff 
replies,  simply  taking  issue  thereupon,  without  al- 
leging any  thing  in  avoidance  of  such  defence.  In 
such  a  case,  the  defendant  holds  the  affirmative  of 
the  issue,  the  sole  question  of  fact  to  be  tried,  being 
the  payment,  or  usury,  or  statute  of  limitations,  or 
infancy,  and  he  has  the  right  to  open  and  close  the 
case.  So,  where,  in  an  action  for  the  breach  of  a 
covenant,  the  defendant  by  his  answer,  admits  the 
breach,  and  alleges  that  the  coven nnt  was  broken, 
in  consequence  of  some  act  of  the  plaintiff  or  other- 
wise, and  the  plaintiff  takes  i.-sue  thereupon,  the 
defendant  will  be  entitled  to  the  affirmative.  So, 
generally,  whichever    party,  under   the  pleadings, 


180  EXAMINATION    OF    WITNESSES'. 

has  the  burden  of  proving  the  issue,  holds  the  affir- 
mative^ 

The  cause  is  opened,  by  stating  the  case,  and  the 
facts  the  party  expects  to  prove,  to  the  jury.  It  is 
proper,  also,  to  state  the  defence,  or  facts,  that  will 
be  proved  on  the  other  side,  so  far  as  the  counsel 
is  acquainted  with  such  defence  or  facts,  and  the 
evidence  that  will  be  introduced  to  disprove  them. 

Examination  of  ivitnesses.] — Having  opened  the  case 
to  the  jury,  the  party  who  holds  the  affirmative,, 
proceeds  to  examine  his  witnesses,  who  must  be 
sworn.  The  opposite  party,  however,  may  object  to 
the  incompetency  of  a  witness,  and  this  objection, 
ordinarily,  should  be  made  before  the  witness  is 
sworn  in  chief,  that  is  to  testify  in  the  cause.  The 
grounds  of  objection  to  the  competency  of  a  witness, 
have  been,  latterly,  very  much  abridged  Thus,  no 
person  is  rendered  incompetent  to  be  a  witness  on 
account  of  his  opinions  on  matters  of  religious  belief. 
Con.  ofN.  York,  (1846,)  Art.  1,  §  3.  So,  no  person 
offi3red  as  a  witness,  shall  be  excluded  by  reason  of 
his  interest  in  the  event  of  the  action.  Code,  §  398. 
This,  however,  does  not  authorize  a  party  to  the 
action,  nor  any  person  for  whose  immediate  benefit 
it  is  prosecuted  or  defended,  nor  any  assignor  of  a 
thing  in  action  assigned  for  the  purpose  of  making 
him  a  witness,  to  be  examined  in  his  own  behalf, 
unless  he  is  called  by  the  opposite  party.  But,  a 
person  convicted  of  perjury  or  subornation  of  per- 
jury, cannot  thereafter  be  received  as  a  witness  to 
be  sworn  in  any  matter  or  cause  whatever,  until 
the  judgment  against  him  be  reversed.  2  Rev.  Stat., 
CBl,  §§  1,  4.    It  seems,  however,  that  a  pardon  would 


STATING    DEFENCE    AND    EXAMINING    WITNESSES.        181 

restore  the  competency  of  such  person.  Mailer  of 
Detning,  10  /.  R.,  232;  People  vs.  James  2  Cat.  R.,  57. 
So,  persons  sentenced  upon  a  conviction  for  felony, 
are  incompetent  to  testify  in  any  cause,  unless  par- 
doned by  the  governor,  or  legislature.  2  Rev.  Stut.y 
701,  §  23  ;  5  Htll  R.,  260.  But  a  conviction  for  other 
offences  does  not  disqualify.  2  R.  S.,  701,  §  23. 

As  we  liave  seen,  the  parties  to  the  action  may 
also  be  examined.    Ante  p.  164. 

The  manner  and  extent  of  the  examination  of 
witnesses  is  regulated  by  the  discretion  of  the  judge. 
The  judge,  however,  has  no  right  to  reject  evidence 
offered  by  the  party,  which  is  pertinent  to  the  issue. 
Regularly,  the  party  who  begins  must  exhaust  all 
his  testimony,  in  support  of  the  issue  on  his  side, 
before  the  opposite  testimony  has  been  heard,  and 
can  introduce  no  evidence  afterwards  except  in  re- 
ply. 1  Hill  R.  300;  2  Id.  286;  20  Wend.  226.  This 
rule  may  be  departed  from  by  the  judge,  in  his  dis- 
cretion ;  but  the  party  cannot  claim  it  as  a  matter  of 
right.     4  Hill,  202. 

Stating  defence  and  examining  witnesses.] — The  plain- 
tiff having  gone  through  his  evidence  and  rested 
his  case,  the  defendant's  counsel,  if  he  be  of  opinion 
that  the  plaintiff  has  failed  to  make  out  his  case, 
may  move  for  a  non  suit.  So,  if  there  be  a  variance 
between  the  proof  and  the  complaint,  he  may  move 
for  a  non-suit.  But  a  variance  to  authorise  a  non- 
suit, must  not  be  in  some  particular  or  particulars 
only,  but  the  allegation  to  which  the  proof  is  direct- 
ed must  be  unpoved  in  its  entire  scope  and  mean- 
ing.    Code,  §  171. 

If  the  motion  for  a  non-suit  is  denied,  the  defend- 


182  SUMMING   UP. 

ant's  counsel  proceeds  to  open  and  state  to  the  jury 
the  matter  of  the  defence,  and  the  evidence,  if  any, 
which  he  will  adduce  in  support  of  it;  and  he  may 
comment  on  the  case  and  evidence  of  the  plaintiff. 
Witnesses  are  then  examined,  in  the  same  manner 
as  on  the  part  of  the  plaintiff.  After  the  defendant 
has  rested  his  case,  the  plaintiff  has  the  right  to  give 
evidence,  in  reply,  and  thus  to  contradict,  modify 
and  explain,  or  in  any  way  vary  the  evidence  of  the 
defendant.  Beyond  this  he  cannot  go,  without  the 
permission  of  the  judge.     5  Hill,  288. 

Only  one  counsel  can  examine  or  cross-examine 
a  witness,  on  either  side.    Rule  13. 

Summing  up.] — The  testimony  on  hoth  sides  being 
closed,  the  counsel  proceed  to  sum  up  the  cause  to 
the  jury.  The  party  who  holds  the  affirmative  of 
the  issue,  has  the  right  to  close  the  summing  up. 
Only  one  counsel  on  each  side  is  allowed  to  sum 
up  the  cause  to  the  jury,  unless  the  justice  holding 
the  circuit  shall  otherwise  order.     Rule  13. 

Judge's  charge.]— The  counsel  on  both  sides  having 
summed  up  the  cause  to  the  jury,  the  justice  pro- 
eeeds  to  give  his  charge  to  the  jury,  upon  the  ques- 
tions of  law  in  the  cause.  He  explains  to  them  the 
nature  of  the  issue  and  of  the  defence,  recapitulates 
the  evidence,  and  directs  the  jury  on  the  points  of 
law  arising  on  the  evidence. 

The  verdict.]— The  jury  having  been  charged  by 
the  court,  are  to  make  up  and  render  their  verdict. 
Verdicts  are  of  two  kinds, 

1.  General,  and 

2.  Special.   Code,  §  260. 

A  general  verdict,  is  that   by  which  the  jury  pro- 


THE   VERDICT.  183. 

noiince  generally  upon  all  or  any  of  the  issues,  either 
in  favor  of  the  plaintiff  or  defendant.  Thus,  that 
they  find  in  favor  of  the  plaintiff,  for  two  hundred 
dollars  damages,  or  that  they  find  in  favor  of  the 
defendant. 

A  special  verdict,  is  that  by  which  the  jury  find  the 
facts  only,  leaving  the  judgment  to  the  court. 

Instead  of  finding  a  general  verdict,  which  the 
jury  may  always  do,  except  in  certain  cases,  which 
will  be  hereafter  stated,  and  thus  take  upon  them- 
selves to  judge  of  both  the  law  and  the  fact,  they 
may  find  the  facts  specially,  leaving  to  the  court 
the  application  of  the  law  to  the  facts  thus  found. 

A  special  verdict,  cannot  be  found,  except  in 
actions  for  the  recovery  of  money  only  or  specific 
real  property,  or  where  the  court  shall  direct  a  spe- 
cial verdict  to  be  found. 

In  actions  for  the  recovery  of  specific  personal 
property,  if  the  property  has  not  been  delivered  to 
the  plaintiff,  or  the  defendant,  by  his  answer,  claims 
a  return  thereof,  the  jury  must  assess  the  value  of 
the  property,  if  their  verdict  be  in  favor  of  the  plain- 
tiff, or  if  they  find  in  favor  of  the  defendant,  and 
that  he  is  entitled  to  a  return  thereof  The  jury 
may  at  the  same  time,  assess  the  damages,  if  any 
are  claimed  in  the  complaint  or  answer,  which  the 
prevailing  party  has  sustained,  by  reason  of  the 
detention  or  taking  and  withholding  such  property. 
Code,  §2G1. 

Where  a  verdict  is  found  for  the  plaintiff,  in  an 
action  for  the  recovery  of  money  only,  the  jury  must 
also  assess  the  amount  of  the  recovery.  Code,  §  262. 

Where  the  jury  find  a  special  verdict,  it  must  be 


184  FILING    AND    ENTERING   VERDICT. 

reduced  to  writing  and  must  specifically  find  the 
facts  to  be  as  stated  in  the  verdict.  The  jury  may 
also,  under  the  instructions  of  the  justice,  render  a 
general  verdict,  and  also  a  special  verdict  upon 
particular  questions  of  fact. 

Where  a  special  finding  of  facts  is  inconsistent 
with  the  general  verdict,  the  former  will  control  the 
latter,  and  the  court  will  give  judgment  accordingly. 
Code,  §  262. 

Filing  and  entering  verdict.'] — A  general  verdict  is 
rendered  orally  by  the  jury  and  is  entered  by  the 
clerk  of  the  court  in  the  minutes.  A  special  ver- 
dict is  in  writing,  and  must  be  filed  with  the  clerk 
and  entered  upon  the  minutes.  Upon  receiving  the 
verdict  the  court  directs  an  entry  to  be  made  in  the 
minutes,  specifying  the  time  and  place  of  the  trial, 
the  names  of  the  jurors  and  witnesses,  the  verdict, 
and  either  the  judgment  to  be  rendered  thereon,  or 
an  order  that  the  case  be  reserved  for  argument  or 
further  consideration.  Code,  §  264.  As  to  reserving 
the  case  for  argument  or  further  consideration,  see 

post. 

Judgment.'] — Judgment  is  then  entered  in  conform- 
ity to  the  verdict.  As  to  the  manner  of  entering 
judgment  see  post.  The  judgment  becomes  final  af- 
ter four  days,  unless  the  court  or  judge  thereof  order 
the  case  to  be  reserved  for  argument  or  further  con- 
sideration, or  grant  a  stay  of  proceedings. 

Plaintiff  failing  to  appear.'] — Formerly,  if  the  plaintiff 
neglected  to  bring  on  the  trial  of  the  cause,  the  de- 
fendant had  to  wait  until  the  next  special  term  of 
the  court,  and  then  move  for  judgment,  as  in  the 
case  of  non-suit.  Now,  however,  the  defendant,  as 
well  as  the  plaintiff  may  notice  the  cause  and  move 


PLAINTIFF    FAILING    TO    APPEAR.  185 

the  trial  at  the  circuit.  If  tlie  plaintiff  do  not  ap- 
pear, or  do  not  bring  on  the  trial,  the  defendant  may 
proceed  with  the  case,  unless  the  court,  for  good 
cause,  shall  otherwise  direct.  The  defendant  may- 
take  a  dismissal  of  the  complaint,  or  he  may  exam- 
ine his  witnesses,  and  where  he  is  entitled  to  re- 
cover damages  or  have  the  return  of  personal  pro- 
perty or  both,  he  may  take  a  verdict,  and  have  a 
judgment  accordingly.  Code  §  258.  Rule  23. 

In  addition  to  this,  if  the  plaintiff  fails  to  notice 
the  cause  for  tiial,  or  having  noticed  it  fails  to  bring 
the  same  to  trial,  the  defendant  may  move  for  the 
dismissal  of  the  complaint  with  costs.  Rule  23.  In 
order  to  make  this  motion,  it  is  not  necessary  that 
the  defendant  should  not  have  noticed  the  cause, 
but  he  may  move  for  such  dismissal,  notwithstand- 
ing he  shall  have  noticed  the  cause  for  trial. 

This  motion  must  be  made  at  a  special  term,  and 
is  founded  upon  an  affidavit,  setting  forth  that  an  is- 
sue of  fact  has  been  joined  in  the  action;  that  a  cir- 
cuit court  has  been  held  in  the  county  in  which  the 
action  is  pending,  and  that  the  plaintiff  has  failed  to 
notice  the  cause  for  trial,  or  has  failed  to  bring  the 
same  to  trial.     Rule  23. 

The  plaintiff,  however,  may  at  any  time,  either 
before  notice  of  the  motion  or  afterwards,  give  to  the 
defendant's  attorney,  a  stipulation  to  try  the  cause 
at  the  next  circuit,  and  offer  to  pay  the  costs  to  which 
the  defendant  is  entitled  up  to  the  time  of  tendering 
the  stipulation.  Rule  22.  The  plaintiff  cannot  so 
stipulate  more  than  once.     lb. 

The  plaintiff  may  show  in  opposition  to  the  mo- 
tion, that  his  neglect  to  bring  the  action  to  trial  was 
not  unreasonable,  in  which  case  the  court  will  per- 


186  TRIAL    BY    REFEREES. 

mit  him  on  payment  of  costs,  to  bring  the  cause  to 
trial  at  the  next  circuit  court,  where  the  same  is  tri- 
able. Id.  The  plaintiff,  it  seems  may  also  show 
that  the  action  could  not  have  been  tried  at  the  cir- 
cuit, as  that  issues  of  older  dates  were  not  reached 
in  the  regular  call  of  the  calendar,  or  that  the  judge 
refused  to  try  the  cause,  and  the  like. 

SECTION  VIII. 

Of  Trial  by  Referees. 

The  right  to  try  causes  by  referees,  has  been  ex- 
tended to  every  case,  whether  the  issue  be  one  of 
law  or  fact.  Formerly  references  were  confined  to 
actions  of  assumpsit,  where  the  trial  of  the  cause 
would  require  the  examination  of  a  long  account  on 
either  side.  Now  however,  all  or  any  of  the  issues 
in  any  action,  whether  of  law  or  of  fact,  or  both, 
may  be  referred  upon  the  written  consent  of  the 
parties.     Code  §  270. 

In  lohat  cases  ] — The  court  in  which  the  action  is 
pending,  has  the  power,  without  the  consent  of  the 
parties,  upon  the  application  of  either,  or  of  its  own 
motion,  to  direct  a  reference  in  the  following  cases. 

1.  Where  the  trial  of  an  issue  of  fact,  shall  require 
the  examination  of  a  long  account  on  either  side,  in 
which  case  the  referees  may  be  directed  to  hear  and 
decide  the  whole  issue,  or  to  report  upon  any  speci- 
fic questions  of  fact  involved  therein. 

It  has  been  decided  in  regard  to  a  reference  un- 
der this  head,  that  it  is  confined  to  cases  of  accoimts 
existing  between  the  parties,  and  does  not  reach  a 
case  of  many  items  of  damage.    C  /////,  372.    A  refe- 


TRIAL    B\^    REFEREES.  187, 

rence  will  be  ordered  where  there  are  but  four  items 
of  an  account.  10  Wendell,  577.  But  where  a  de- 
fendant stipulated  to  admit  the  plaintiff's  cause  of 
action  as  to  all  his  bill  of  particulars,  except  the  ex- 
ecution and  delivery  of  a  promissory  note,  the  court 
refused  to  refer  the  cause,  although  the  bill  of  par- 
ticulars contained  a  large  number  of  items.  Aful- 
lin  V.  Kelly,  3  Hoio.  Pr.  Rep.  12.  So,  where  it 
appears  that  substantial  questions  of  law  will  arise 
on  the  trial,  although  the  plaintiff  shows  that  it  will 
require  the  examination  of  a  long  account  on  his 
part.  Ives  v.  Vandewater,  3  How.  Pr.  Rep.  168. 
A  reference  will  also  be  ordered, 

2.  Where  the  taking  of  an  account  is  necessary 
for  the  information  of  the  court,  before  judgment, 
or  for  carrying  a  judgment  or  order  into  effect. 

In  this  case,  the  reference  is  usually  made  be- 
fore judgment:  thus,  in  an  action  for  the  foreclo- 
sure of  a  mortgage,  an  order  of  reference  is  proper 
to  ascertain  the  amount  due  to  the  plaintiff,  to  en- 
able the  court  to  make  the  appropriate  judgment. 

3.  Where  a  question  of  fact,  other  than  upon  the 
pleadings,  shall  arise,  upon  motion  or  otherwise,  in 
any  stage  of  the  action. 

The  court  are  authorized  to  refer  a  conflicting 
question  of  fact  arising  upon  a  special  motion. 
Thus,  where  material  facts  in  the  affidavits  of  the 
moving  party  are  denied  by  the  opposing  party,  the 
court  may  refuse  to  determine  the  question,  and 
may  order  a  reference.  So,  in  a  summary  proceed- 
ing, the  court  may  order  a  question  of  fact  to  be 
tried  by  reference. 

Actions  for  torts  are   not  referrible,  without  the 


188  MOTION   FOR    REFERENCE. 

consent  of  the  parties;  and  in  all  cases,  when  a 
consent  is  necessary,  it  must  be  in  writing,  and  filed 
with  the  clerk  of  the  county  where  the  action  is 
pending. 

Motion  for  reference.'] — The  motion  for  a  reference 
is  non-enumerated,  and  must  be  made  at  one  of  the 
special  terms  of  the  court  held  in  the  district  em- 
bracing the  county  in  which  the  action  is  pending, 
or  in  an  adjoining  county,  and  is  founded  upon  an 
affidavit  of  the  party  wishing  the  reference. 

Affidavit.'] — The  affidavit  should  state  the  nature  of 
the  issue  and  the  time  when  it  was  joined,  and  that 
the  trial  of  the  action  will  require  the  examination 
of  a  long  account,  either  on  the  one  side  or  on  both 
sides.  It  seems,  the  affidavit  must  be  made  by  the 
party  himself,  and  not  by  the  attorney,  unless  a 
sufficient  excuse  is  shown  for  the  omission.  4  Hill, 
548. 

Notice  and  service.] — A  copy  of  the  affidavit,  with  a 
notice  of  the  motion,  must  be  served  on  the  oppo- 
site party,  eight  days  before  the  first  day  of  the 
special  term,  at  which  it  is  designed  to  make  the 
motion.  The  notice  should  contain  the  names  of 
the  persons  proposed  as  referees.  It  is  usual  to 
name  three,  but  it  will  be  sufficient  if  one  is  named, 
as  the  court  is  now  authorized,  without  the  consent 
of  the  parties,  to  appoint  one  or  three  referees. 
Code,  §  273. 

Affidavit  to  oppose.] — In  opposition  to  the  motion  to 
refer,  it  may  be  shown  by  affidavit,  that  questions 
of  law  will  arise  upon  the  trial  of  the  cause.  And 
if  it  clearly  appear  that  substantial  questions  of  law- 
will  arise,  the  motion  will  be  denied.    1  How.  Pr. 


APPOINTING   REFEREES.  189 

7?.,  168.  The  questions  of  law  that  will  arise,  must 
be  stated  in  the  affidavit,  that  the  court  may  be  able 
to  judge  whether  they  are  material  or  difficult,  or 
will  necessarily  arise.  It  is  not  enough  that  the  affi- 
davit states  that  questions  of  law  will  arise,  with- 
out stating  what  those  questions  are.  And  the  court 
must  be  satisfied  they  will  be  questions  of  real  diffi- 
culty, otherwise  they  will  grant  the  motion.  5  Cow., 
\  423, 

Appointing  referees.] — The  party  opposing  the  refer- 
ence, has  the  right  to  object  to  the  referee  or  referees 
named  in  the  notice.  But  if  no  objection  is  made, 
the  person  or  persons  so  named,  will  be  appointed 
of  course.  In  case  the  parties  disagree,  the  court 
will,  either  upon  the  nomination  of  the  parties,  or  of 
its  own  motion,  appoint  one  or  three  referees,  who 
are  free  f  om  exception,  and  who  reside  in  the 
county  where  the  action  is  pending.  Code,  §  273. 
In  case  the  parties  nominate,  it  is  usual,  where  three 
referees  are  to  be  appointed,  for  each  to  name  one, 
and  the  court  to  appoint  the  third.  In  case  of  disa- 
greement, and  only  one  referee  is  to  be  selected,  the 
court  makes  the  appointment  of  its  own  motion. 

Objection  may  be  made  to  referees,  that  they  are 
related  to  the  parties,  or  some  of  them,  or  have 
formed  and  expressed  an  opinion,  in  respect  to  the 
subject  matter  of  the  action,  or  have  some  interest 
therein ;  and  generally,  the  same  objections  may  be 
made  to  a  referee,  that  may  be  made  to  a  juror. 

Order.] — If  the  motion  is  granted,  draw  up  the  or- 
der, and  have  it  entered  with  the  clerk  of  the  coun- 
ty where  the  action  is  triable,  for  which  purpose,  if 
the  motion  is  made  in  a  county  other  than  that  in 


190  PROCEEDINGS    ON   REFERENCE. 

which  the  action  is  pending,  get  the  order  certified 
by  the  clerk  and  have  the  order  entered  in  the 
proper  county.  Serve  a  copy  of  the  order  on  the 
opposite  attorney.  It  has  been  held,  however,  that 
such  service  is   not  necessary.     1  How.  Pr.  IL  193. 

Reference  at  the  circuit.] — If  the  cause  is  noticed  for 
trial,  an  application  for  a  reference,  may  also  be 
made  to  the  justi  -e  holding  the  circuit,  (2  Eev.  Stat.., 
305,  §  42,)  who  may  order  the  cause  to  he  referred, 
with  the  like  effect,  as  if  made  at  a  special  term. 
No  notice  of  the  application  for  a  reference  at  ^he 
circuit  need  be  given,  but  the  usual  affidavit  must 
be  made.  The  justice  holding  the  circuit,  may  also, 
of  his  own  motion,  refer  causes  at  the  circuit,  when 
in  his  opinion  the  trial  will  require  the  examination 
of  a  long  account. 

Notice  of  reference.] — Either  party  may  notice  the 
cause  for  hearing  before  the  referees ;  for  which 
purpose,  a  notice  often  days  must  be  served  speci- 
fying the  time  and  place  of  the  hearing.  Previous, 
however,  to  giving  the  notice,  the  party  wishing  to 
bring  on  the  hearing,  should  procure  from  the 
referee  or  referees,  or  a  majority  of  them,  an  ap- 
pointment of  the  time  and  place  of  hearing.  A  copy 
of  the  appointment  should  be  served  with  the  no- 
tice of  hearing. 

Proceedings  on  reference.] — All  the  referees  must 
meet  together  at  the  time  and  place  designated,  and 
must  be  sworn  well  and  faithfully  to  hear  and  ex- 
amine the  cause,  and  make  a  just  and  true  report 
therein,  according  to  the  best  of  their  understanding. 
The  oath  may  be  administered  b}'-  any  officer  au- 
thoriz  d  to  take  affidavits  lo  be  read  in  the  Supreme 


PROCEEDINGS    ON    REFERENCE.  191 

Court.  All  the  referees  must  hear  the  proofs  and 
allegations  of  the  parties,  but  a  report  of  two  will  be 
valid.  2  R.  S.,  306,  §  47.  And  if  any  of  the  referees 
refuse  to  appear  the  court  may  compel  them  to  do 
so,  (2  R.  S.,  306,  §  47,)  by  order  requiring  them  to 
appear  or  shew  cause,  why  an  attachment  should 
not  issue  against  them.    1  Wendell,  li.  2  John.  R.,  260. 

Either  party  giving  the  notice,  may  bring  on  the 
liearing  before  the  referees.  Code,  §  258.  If  there- 
fore, the  plaintiff  omits  to  appear  or  proceed  with 
the  reference,  the  defendant,  having  noticed  the 
hearing,  may  proceed  with  the  case,  and  have  a  re- 
port generally  in  his  favor^  that  there  is  nothing  due 
from  him  to  the  plaintiff,  or  may  examine  his  wit- 
nesses, and  have  a  report  in  his  favor,  for  such  sum 
as  shall  be  found  to  be  due  from  the  plaintif!"  to  the 
defendant.  Code,  §  258. 

Formerly,  a  notice  to  the  plaintiff  to  bring  on  the 
hearing,  was  necessary,  and  in  default,  the  defend- 
ant could  move  fcr  judgment  as  in  the  case  of  non- 
suit. Now,  however,  the  defendant  may,  as  has 
been  stated,  notice  the  cause  forbearing,  and  obtain 
a  report,  although  the  plaintiff  neglects  to  notice  or 
bring  on  the  hearing. 

If,  however,  the  plaintiff  omits  to  notice  the  cause 
for  hearing,  before  the  referees,  or  if  having  noticed 
it,  fail  to  proceed  with  the  trial,  the  defendant  may 
move  for  a  dismissal  of  the  complaint,  with  costs. 
Rule  23.  The  defendant  may  make  this  motion, 
although  he  may  have  himself  noticed  the  reference 
for  hearing.  The  motion,  under  these  circumstances, 
is  made  at  the  special  term,  upon  an  affidavit  of 
the  facts,  setting  forth  that  an  issue  has  been  join- 


192  ADJOURNMENT. 

ed  ill  the  action,  and  that  the  plaintiff  has  neglected 
to  bring  the  cause  to  trial  before  the  referees.  Rule 
23.  The  plaintiff,  however,  may  at  any  time,  either 
before  or  after  notice  of  motion,  give  to  the  defend- 
ant's attorney  a  stipulation  to  try  the  cause,  and 
offer  to  pay  the  costs  to  which  the  defendant  is  en- 
titled np  to  the  time  of  tendering  the  stipulation. 
Rule  22.  The  plaintiff  cannot  so  stipulate  more  than 
once.  Id.  The  plaintiff  may  show  that  the  neglect 
to  try  is  not  unreasonable,  and  that  will  be  a  good 
answer  to  the  motion.  Rule  22. 

The  plaintiff  nuist  furnish  the  referees  with  a 
copy  of  the  summons  and  pleadings  and  the  offer  of 
the  defendant,  if  any  shall  have  been  made. 

The  same  rules  in  respect  to  the  trial  of  the  refer- 
ence, and  the  examination  of  witnesses,  are  to  be 
observed,  as  on  the  trial  of  a  cause  before  a  jury. 
See  ante  p.  178.  The  plaintiff  may  submit  to  a  non- 
suit or  be  non-suited  by  the  referees,  in  like  manner 
as  upon  a  trial  at  the  circuit,  at  any  time  before  the 
cause  has  been  finally  submitted  to  the  referees,  for 
their  decision.  In  which  case  the  referees  report 
the  fact  that  the  plaintiff  submitted  to  a  non-suit, 
or  was  non-suited,  as  the  case  may  be,  and  judgment 
may  thereupon  be  perfected  by  the  defendant.  Rule 
2-5.  The  witnesses  may  be  sworn  by  either  of  the 
referees. 

Adjournment.] — The  referees  have  power  to  adjourn 
the  hearing  from  time  to  time,  upon  the  application 
of  either  party,  and  good  cause  shown.  2  R.  S.,  305, 
§  44.  So,  they  may  adjourn,  on  their  own  motion, 
without  the  consent  of  the  parties. 

In  order  to  adjourn,  all  the  referees  must  meet, 


REPORT.  193 

(7  Wendell,  534;  22  lb.,  637) ;  and  Avhere  the  hearing 
is  adjourned  upon  the  application  of  a  party,  the 
referees  may  impose  as  a  condition  of  granting  the 
adjournment,  the  payment  to  the  opposite  [  arty  of 
a  sum,  not  exceeding  ten  dollars,  besides  the  fees  of 
witnesses,  {Code,  §  314,)  and  may  require  the  same 
to  be  paid  forthwith  or  allow  the  reference  to  pro- 
ceed. 5  Hill,  375. 

Report] — The  referees,  after  having  heard  and 
-examined  the  case,  are  bound  to  proceed  and  make 
up  their  report,  in  a  reasonable  time,  or  they  may 
be  compelled  to  do  so,  by  a  rule  of  the  court  requir- 
ing them  to  report  or  show  cause  why  a  i  attach- 
ment should  not  be  issued  against  them.  2  R.  S.^ 
S06,  §  48. 

The  report  is  in  the  nature  of  the  decision  of  the 
court,  or  the  verdict  of  a  jury,  and  where  it  is  upon 
the  whole  issue,  it  will  stand  as  the  decision  of  the 
court.  Code,  §  272.  It  is  not  necessary  that  the  re- 
ferees should  find  the  facts  established  by  the  proof, 
or  the  conclusions  of  law  thereupon,  but  simply  the 
amount  "due"  to  the  plaintiff  or  defendant,  as  the 
case  may  be.  Where,  however,  the  referees  are 
directed  to  report  upon  any  specific  question  of  fact 
involved  in  the  cause,  they  must  make  a  special 
report  of  such  fact  with  their  finding  thereupon.  It 
is  not  necessary,  in  such  case,  to  report  the  evidence^ 
but  simply  the  fact  or  facts,  established  by  the  evi- 
dence. As,  that  the  plaintiff  proved  on  the  hearing 
that  A.  B.  died  on  the  first  of  March,  1845,  intestate 
the  owner  of  the  premises  mentioned  in  the  com- 
plaint, leaving  him  surviving,  the  plaintiff,  and  C. 
and  D.,  his  children,  and  only  heirs  at  law,  who 

«eaxh  tliere by,  became  seized  of  one  equal  undivided 

13 


194  FEES    OF   REFEREES. 

third  part  of  said  premises,  in  fee  simple :  or,  that 
the  defendant  made  the  promissory  note  or  contract 
mentioned  in  the  complaint,  and  the  like.  But  the 
evidence  proving  such  facts,  need  not  be  stated  in 
the  report. 

The  report  of  the  referees,  where  it  is  upon  the 
whole  issue,  may  be  excepted  to,  and  reviewed  in 
the  same  manner,  as  the  decision  of  the  court;^ 
where  the  issue  is  tried  by  the  court,  without  a  jury, 
may  be ;  or  the  court  may  grant  a  rehearing.  Codey 
§  272.     See  post.  Rule  24. 

The  report  must  be  signed  by  at  least  hvo  of  the 
referees-  2  Rev.  Stat.,  306,  §  47.     The  report,  when 
signed,  should  be  delivered  to  the  attorney  for  the 
prevailing  party,  and  by  him  filed  with  (he  clerk  of 
the  county  where  the  action  is  pending.  Rule  3. 

Fees  of  referees.^ — Each  referee  is  entitled  to  three 
dollars  a  day  for  every  day  spent  in  the  business  of 
the  reference.  They  are  not  entitled  to  any  further 
sum  for  expenses:  but  the  parties  may  agree  in 
writing,  upon  any  other  rate  of  compensation,  not 
less,  however,  than  three  dollars  a  day  to  each  re- 
feree.  Code,  §  313. 

Judgment.] — Upon  filing  the  report,  where  it  is 
made  on  the  whole  issue,  the  prevailing  party  may 
immediately  enter  up  judgment  for  the  amount  re- 
ported to  be  due,  with  the  costs  and  disbursements 
to  which  he  is  entitled  by  law:  or,  if  the  report  be 
that  there  is  nothing  due  from  the  defendant  to  the 
plaintilT,  the  judgment  will  be  for  the  costs  and  dis- 
bursements only.  It  is  not  necessary  to  serve  a 
copy  of  the  report  on  the  opposite  party,  previous  to 
entering  judgment;    such  party  having   ten   days,. 


NOTICE    OF    ARGUMENT.  195 

after  notice  of  the  judgment  to  make  a  case  to  set 
aside  the  report.  Code,  §§  272,  268.  Nor,  is  it  neces- 
sary to  procure  the  order  of  a  judge  to  enter  judg- 
ment. Renoidl  v.  Harris,  1  Code  Rep.,  125.  Rule  24. 
As  to  the  manner  of  entering  judgment,  see  post. 

SECTION  IX. 

Of  the  Trial  of  Issues  of  Law. 

As  has  been  stated,  issues  of  law  mu'r^t  in  all  cases 
be  tried  by  a  single  judge,  without  a  jury.  Ante  p.  169. 
Such  issues  may  arise  either, 

1.  Upon  demurrer  to  a  complaint,  answer,  or  re- 
ply; or, 

2.  Upon  the  allegations  in  the  complaint,  not  con- 
troverted by  the  answer,  or  of  the  answer  not  con- 
troverted by  the  reply: 

And  they  can  arise  in  no  other  way. 

It  is  provided  by  rule,  {Rule  31,)  that  issues  of 
law,  as  provided  for  by  the  Code,  and  demurrers  to^ 
pleadings,  or  any  part  thereof,  must  be  noticed  for 
and  heard  at  a  special  term.  Where  the  special 
terms  are  held  at  the  same  time  and  place  with  the 
circuits,  the  practice  will  be  the  same,  in  bringing 
on  the  trial  of  issues  of  law,  as  it  is  in  trials  of 
issues  of  fact.  But,  in  those  districts  where  the 
special  terms  are  held  at  different  times  and  places 
from  the  circuits,  a  different  practice  must  prevail. 
In  such  cases,  the  practice  is  as  follows: 

Notice  of  argument.] — A  notice  of  the  argument  of 
the  issue,  must  be  served  upon  the  opposite  attorney 
at  least  fen  days  before  the  first  day  of  the  term. 
Code,  §  256. 


196  NOTE    OF    ISSUE. 

The  notice  must  be  for  the  first  day  of  the  term, 
Ei  her  party  may  give  the  notice. 

Note  of  issue] — Four  days  before  the  conimence- 
ment  of  the  term,  a  note  of  the  issue  must  be  sent 
to  the  clerk,  containing  the  names  of  the  parties 
and  of  the  respective  attorneys,  and  the  time  when 
the  last  pleading  was  served.  The  cause  is  there- 
upon entered  upon  the  calendar,  according  to  the 
date  o^  the  issue. 

Furnishing  papers] — The  papers  to  be  furnished  on 
the  argument  of  the  issue,  is  a  copy  of  the  plead- 
ings, when  the  question  arises  on  the  pleadings,  or 
on  any  part  thereof;  or,  where  the  question  arises 
upon  demurrer,  such  parts  only  of  the  pleadings  as 
relate  to  the  question.  Rule  31. 

It  is  the  duty  of  the  plaintiff,  to  furnish  the 
papers,  where  the  issue  arises  upon  the  pleadings, 
and  of  the  party  demurring,  when  the  issue  arises 
on  demurrer.   Id. 

The  party  whose  duty  it  is  to  furnish  the  papers, 
must  serve  a  copy  on  the  opposite  attorney,  at  least 
eight  days  before  the  time  the  issue  may  be  noticed 
for  argument.  If  he  neglect  to  do  so,  the  opposite 
party  may  make  an  affidavit  and  notice  of  motion, 
that  the  cause  be  struck  from  the  calendar,  (which- 
ever party  may  have  noticed  it  for  argument,)  and 
that  judgment  be  rendered  in  his  favor. 

Argument.^ — Upon  the  argument  of  the  issue,  the 
party  demurring,  where  the  issue  arises  upon  de- 
murrer, or  the  plaintiff  where  it  arises  upon  the 
complaint  and  answer,  or  reply,  opens  and  closes 
the  argument,  and  the  opposite  party  replies;  only 
one  counsel  can  be  heard  on  either  side.  Rule  14. 


JUDGMENT    AND    MANNER    OF   ENTERING.  197 

Decision] — The  decision  upon  the  issue  is  entered 
by  the  clerk  in  the  minutes  of  the  court,  and  judg- 
ment entered  accordingly.  If  the  term  is  held  in 
a  county  other  than  that  in  which  the  action  is  tri- 
able, the  rule  or  order  entered  by  the  clerk  must  be 
certified  to  the  proper  county. 

SECTION  X. 

Of   THE  Judgment  and   herein  of   the   Manner  of 

Entering  Judgment. 

Judgment^ — The  judgment  is  the  final  determina- 
tion of  the  rights  of  the  parties  in  the  action.  Code, 
§  245.  We  have  before  considered  the  judgments 
upon  failure  to  answer,  {ante  p.  120)  and  it  remains 
to  consider  judgments  upon  trials  where  the  defend- 
ant has  appeared  and  answered.  There  is  but  one 
kind  of  judgment,  and  that  is  the  final  judgment. 
Formerly  there  were  interlocutor 2/  as  well  as  final 
judgments. 

Aroarding  judgment.] — A  judgment  upon  an  issue 
of  law  is  pronounced  or  delivered  by  the  judge  or 
court,  at  the  time  of  deciding  the  issue.  But  where 
a  verdict  is  rendered  by  a  jury,  or  a  report  is  made 
by  referees,  upon  the  tria!  of  an  issue  of  fact,  there 
is  no  actual  award  of  judgment,  any  farther  than 
that  the  clerk  enters  the  judgment  in  conformity  to 
the  verdict  or  report,  {Rule  24,)  by  the  implied  di- 
rection of  the  justice  or  referees;  the  direction  to 
do  so  being  implied  sufficiently  from  the  fact  that 
the  verdict  or  report  is  received  and  entered  by  the 
clerk  in  the  presence  of  the  justice,  or  by  the  writ- 
ten direction  of  the  referees.     B-.^sides,  courts  of  re- 


198  AWARDING    JUDGMENT 

cord  are  always  open  for  the  entering  up  of  judg- 

ments. 

Judgment  may  be  given  for  or  against  one   or 

more  of  several  plaintiffs,  and  for  or  against  one  or 
more  of  several  defendants,  and  it  may  determine 
the  ultimate  rights  of  the  parties  on  each  side,  as 
between  themselves.  Code,  <  274.  And  in  an  ac- 
tion against  several  defendants,  the  court  may,  in 
its  discretion,  render  judgment  against  one  or  more 
of  them,  leaving  the  action  to  proceed  against  the 
others,  whenever  a  several  judgment  may  be  pro- 
per. Ibid.  Thus,  in  an  action  against  the  makers 
and  endorsers  of  a  promissory  note  or  bill  of  ex- 
change, judgment  may  be  rendered  against  one, 
and  the  suit  proceeded  with  against  the  others; 
and  so,  in  all  cases  where  the  liability  is  several  and 
not  joint.  But  in  cases  of  joint  contracts  or  liabil- 
ity, judgment  must  be  entered  against  all,  and  there 
can  be  no  severance. 

The  court  may  dismiss  the  complaint  and  render 
judgment  with  costs  in  favor  of  one  or  more  defend- 
ants, in  case  of  unreasonable  neglect  on  the  part  of 
the  plaintiff  to  serve  the  summons  on  other  defend- 
ants, or  to  proceed  in  the  cause  against  the  defend- 
ant or  defendants  served.  Code,  §  274.  This,  how- 
ever, can  only  be  done  in  actions  against  persons 
sued  as  joint  contractors,  for  in  other  actions,  it 
seems,  that  the  defendant  served  has  the  right  to 
notice  the  cause  and  proceed  with  the  trial,  and 
need  not  wait  for  the  plaintiff,  or  he  may  move  to 
dismiss  the  complaint.  Rule  2^,  and  see  ante  p.  184. 
But  in  actions  against  persons  jointly'linble,  one  of 
the    defendants   served    cannot    proceed    with   the 


AWARDING   JUDGMENT.  199 

•cause,  in  default  of  the  plaintiff's  moving  therein,  un- 
less the  plaintiff  unreasonably  neglect  to  serve  the 
summons  on  the  other  defendants,  or  to  proceed  in 
the  cause  against  such  as  are  served. 

In  awarding  judgment,  the  court  are  not  confined 
to  the  relief  demanded  in  the  complaint,  except  in 
cases*  where  no  answer  has  been  put  in ;  but  the 
court  may  grant  the  plaintiff  any  relief  consistent 
with  the  case  made  by  the  complaint  and  embraced 
within  the  issue.     Code,  §  275. 

In  actions  for  the  recovery  of  the  possession  of 
personal  property,  the  judgment  for  the  plaintiff 
may  be  for  the  possession  or  for  the  recovery  of  pos- 
session, or  for  the  vakie  thereof,  in  case  a  delivery 
cannot  be  had,  and  for  damages  for  the  detention. 
If  the  property  have  been  delivered  to  the  plaintiff, 
and  the  defendant  claims  or  desires  a  return  thereof, 
the  judgment  may  be  for  such  return  :  but  if  a  re- 
turn cannot  be  had,  then  the  judgment  may  be  for 
the  value  thereof,  and  also  for  damages  for  takin"- 
and  withholding  the  same.  Code,  §278.  The  value 
of  the  property,  where  a  delivery  cannot  be  had,  and 
the  damages  for  the  taking  and  detention,  must  be 
found  by  the  jury  or  referees.  The  rate  or  measure 
of  damages  which  a  party  may  receive,  in  any  ac- 
tion, is  the  same  as  that  which  heretofore  existed. 
Code,  §  276. 

Costs. \ — The  costs  and  disbursements  which  the 
prevailing  party  is  entitled  to  recover,  must  be  in- 
serted in  the  entry  of  judgment ;  for  which  purpose 
the  sum  of  the  charges  for  costs,  and  the  items  of 
disbursements  and  the  fees  of  officers  must  be  made 
out,  and  a  copy  served  on  the  attorney  for  the   op- 


200  MANNER    OF   ENTERING   JUDGMENT, 

posite  party,  with  a  notice  of  at  least  two  daySy 
that  such  prevailing  party  will  apply  to  the  clerk  to 
insert  in  the  entry  of  judgment,  such  sum  of  the 
charges  for  costs,  and  such  items  of  disbursements 
and  fees  of  officers,  as  are  allowed  by  law.  Such 
notice  must  be  in  writing,  must  specify  the  time 
and  place,  when  and  where,  and  name  of  the  clerk 
to  whom  such  application  will  be  made,  and  must 
be  served  in  the  same  manner  as  other  notices.  See 
post.  Code,  §  oil.  The  disbursements  must  be 
stated  in  detail,  and  must  be  verified  by  affidavit^ 
which  must  be  filed.  A  copy  of  the  affidavit,  how- 
ever, need  not  be  served  on  the  opposing  party. 

At  the  time  and  place  mentioned  in  the  notice, 
the  attorney  for  the  prevailing  party  must  appear, 
and  submit  the  charges  and  disbursements  to  the 
clerk  for  allowance,  whose  duty  it  is  to  pass  upon 
the  items,  and  allow  or  disallow  such  as  are  or 
are  not  authorized  by  law.  The  opposing  party 
may  appear  on  such  application,  and  object  to  all 
or  any  of  such  items,  and  the  clerk  must  decide 
such  objections.  As  to  costs  generally,  and  what  are 
allowable  and  the  like,  see  j905*  ^.  203. 

The  costs  and  disbursements  having  been  allow- 
ed by  the  clerk,  they  are  to  be  inserted  by  him  in 
the  entry  of  the  judgment. 

Manner  of  entering  judgment.'] — The  clerk  keeps 
among  the  records  of  the  court,  a  book  for  the  entry 
of  judgments,  which  is  called  the  "judgment  book." 
Code,  §279.  The  judgment  consists  of  a  brief  state- 
ment of  the  relief  granted  by  the  court,  or  other  de- 
termination of  the  action;  the.se  must  be  clearly 
s])ecified.    Code,  §  280.    This  will  conform,  of  course, 


JUDGiMENT   ROLL.  201 

to  each  particular  case,  and   w'lW  be  varied  accor- 
dingly.    Thus,  that  the  plaintiff  recover  from  the 
defendant,  the  sum  of  five  hundred   dollars  for  his 
damages,  and  forty-five  dollars  for  his  costs  and  dis- 
bursements;   or,   that  the   personal  property  men- 
tioned in  the  complaint  be  delivered  to  the  plaintiff, 
and  that  he  recover  from  the  defendant  the  sum  of 
one  hundred  dollars  by  the  jury  assessed  for  his  da- 
mages, for  the  detention  of  such  personal  property, 
and  also  the  sum  of  fifty  dollars  for   his  costs   and 
disbursements.      The  judgment  must  in  all   cases 
follow  the  verdict  of  the  jury  or  repcrt  of  referees, 
where  it  is  upon  a  question  of  fact,  or  the  decision 
of  the  court,  where  it  is  upon  a  question  of  law ; 
but  as  the  verdict,  report  or  decision,  as  well  as  all 
the   pleadings   and   proceedings   in  the   action  are 
annexed  to  and  form  part  of  the  judgment  roll,  it 
is  unnecessary  to  recite   any  part  of  them  in  the 
entry  of  judgment.     For  forms  of  different  kinds  of 
judgments,  see  Appendix. 

Judgment  roll.] — Immediately  upon  pe: footing  the 
entry  of  judgment  in  the  judgment  book,  a  judgment 
roll  is  to  be  made  up  and  filed  with  the  clerk  where 
the  judgment  is  entered,  unless  the  proceedings  are 
stayed,  for  the  purpose  of  making  a  case  or  excep- 
tions. The  roll  may  be  prepared  by  the  attorney  for 
the  prevailing  party,  or  by  the  clerk.  The  roll  con- 
sists of  the  original  summons  and  all  the  pleadings 
in  the  action ;  that  is,  the  complaint,  answer,  reply 
and  demurrers,  if  any,  or  copies  of  such  pleadings, 
a  copy  of  the  entry  of  judgment,  the  verdict  of  the 
jury,  a  report  of  referees,  or  decision  of  the  court, 
the  offer  of  the  defendant,  if  any  shall  have  been 


202  TRANSCRIPTS. 

made  in  the  action,  case  or  exception,  if  any  shall 
have  been  settled  and  filed;  and  all  orders  relating 
to  a  change  of  parties,  or  in  any  way  involving  the 
merits,  and  necessarily  affecting  the  judgment. 
These  different  papers  must  all  be  attached  together, 
and  they  form  the. judgment  roll.  As  to  making 
and  settling  a  case  or  exceptions,  see  post. 

In  case  the  judgment  is  for  the  defendant,  if  the 
plaintiff  shall  not  have  filed  the  summons  with  proof 
of  the  service,  and  the  pleadings  on  bis  part,  the 
defendant  may  substitute  the  copies  served  on  him, 
in  making  up  the  judgment  roll,  or  he  may  apply  to 
a  judge  of  the  court,  for  an  order  requiring  the  plain- 
tiif  forthwith  to  file  such  papers.   Code^  §  281. 

Transcript?^ — Upon  a  judgment  directing  in  whole 
or  in  part  the  payment  of  money,  the  judgment  roll 
having  been  filed,  the  judgment  may  be  docketed 
with  the  clerk  of  the  county  where  it  was  rendered, 
and  also  with  the  clerk  of  any  other  county.  For 
which  purpose,  a  transcript  of  tlie  original  docket 
must  be  procured  from  the  clerk  of  the  county 
where  the  judgment  is  entered.  The  transcript  con- 
tains tlie  name  of  the  court,  the  title  of  the  cause, 
the  amount  of  the  judgment,  the  time  when  dock- 
eted, and  the  name  of  the  attorney.  Upon  filing 
such  transcript  with  the  clerk  of  any  county,  the 
judgment  may  be  docketed  therein.  From  the  time 
of  docketing  such  judgment  in  any  county,  it  is  a 
lien  u[on  any  real  property  therein  belonging  to  the 
party  against  whom  the  judgment  is  rendered. 


OF  COSTS.  203 

SECTION  XI. 

Of  Costs. 

All  statutes  establishing^  or  regulating  the  costs  or 
fees  of  attorneys,  solicitors  and  counsel,  in  civil 
actions,  and  all  rales  and  provisions  of  law,  hereto- 
fore existing,  restricting  or  controlling  the  right  of 
a  party  to  agree  with  an  attorney,  solicitor  or  coun- 
sel, for  his  compensation,  are,  by  section  303  of  the 
Code,  repealed. 

Formerly,  what  was  denominated  the  "fee  bill," 
which  established  and  regulated  the  costs  and  fees 
of  attorneys,  solicitors  and  counsel,  was  created  by 
statute,  and  contained  the  different  items  which  the 
attorney,  solicitor  and  counsel  of  the  prevailing 
party  was  entitled  to  recover  in  the  judgment. 
These  costs  were  made  out  in  detail  in  pursuance 
of  such  fee  bill,  and  taxed  by  one  of  the  officers  of 
the  court. 

This  "fee  bill'  has  from  time  to  time  undergone 
various  modifications,  changes  and  alterations,  by 
the  Legislature,  and  been  the  subject  of  much  com- 
plaint by  suitors  and  persons  who  have  had  the 
misfortune  to  be  in  the  wrong  in  a  law  suit.  Hap- 
pily, however,  for  tlie  lawyer,  who  was  supposed  to 
have  reaped  the  benefit  of  these  laws,  and  who, 
therefore,  was  the  cause  of  so  much  special  legisla- 
tion, the  "fee  bill"  has  been  abolished,  and  instead 
of  costs  and  counsel  fees,  there  may  now  be  allowed 
to  the  prevailing  party,  upon  the  judgment,  certain 
.sums,  by  way  of  indemnity,  for  his  expenses  in  the  action. 
Code,  §  303. 


Vw 


204  plaintiff's  costs. 

These  allowances  are,  however,  termed  costs. 
Plaintiff's  costs^ — Costs  are  allowed,  of  course,  to 
the  plaintiff  upon  a  recovery,  in  the  following  cases. 

Code,  §  304. 

1.  In  an  action  for  the  recovery  of  real  property, 
or  where  a  claim  of  title  to  real  property  arises  on 
the  pleadings,  or  is  certified  by  the  court,  to  have 
come  in  question  on  the  trial. 

The  plaintiff  in  these  cases  is  entitled  to  recover 
costs  without  reference  to  the  amount  of  the  recov- 
ery. And  therefore  if  he  recover  six  cents  he  will 
be  entitled  to  costs.  In  actions  for  the  recovery  of 
real  property,  such  as  were  formerly  denominated 
"  ejectments,"  there  will  be  no  difficulty  in  deter- 
mining the  right  to  recover  costs,  as  in  all  such  ac- 
tions, if  the  plaintiff^  succeeds  in  obtaining  a  judg- 
ment, he  is  entitled  to  his  costs.  But,  where  the 
claim  of  title  to  real  property  arises  on  the  piead- 
inffs,  or  where  title  comes  in  question  on  the  trial, 
it  will  be  sometimes  difficult  to  determine  whether 
the  plaintiff  is  entitled  to  costs.  In  such  cases,  the 
iustice  or  referees  who  tried  the  action  can,  alone, 
decide  the  question.  Where  the  claim  arises  on 
the  pleadings,  they  must  be  looked  into,  to  ascertain 
that  fact,  and  where  it  arises  on  the  trial,  it  is  to  be 
judged  of,  from  the  evidence  and  proceedings  in  the 
cause.  To  raise  a  question  of  title,  either  upon  the 
pleadings  or  upon  the  trial,  it  must  be  a  title  that  is 
disputed  by  the  opposite  party;  for  an  admitted  or 
conceded  title  cannot  come  in  question.  Therefore, 
where  in  an  action  for  a  trespass,  the  defendant  ad- 
mitted the  trespass,  but  claimed  a  right  of  way, 
which  the  plaintitl*  denied,  the  claim  of  title  would 


plaintiff's  costs.  205 

arise  upon  the  pleadings,  and  that  would  be  the 
question  to  try.  But  where  the  defendant  claimed 
a  license  to  the  locus  in  quo,  title  would  not  arise,  the 
license  being  the  question  to  try.  1  Coiven,  568.  So, 
in  trespass  on  uncultivated  lands,  of  which  the 
plaintiff  had  no  actual  occupation,  and  consequently 
was  bound  to  sheAV  a  constructive  possession,  by 
shewing  title,  even  though  the  defendant  on  the 
trial  admitted  the  plaintiff's  title,  it  was  held,  under 
the  old  statute,  which  is  similar  to  the  present,  that 
title  came  in  question,  and  that  the  plaintiff  recov- 
ering any  damages  was  entitled  to  costs.  S  Cowen, 
115.  It  is  not  necessary  tliat  the  title  claimed 
should  be  derived  from  a  deed  or  grant,  but  where 
it  is  claimed  by  adverse  possession  or  prescription, 
it  involves  the  question  of  title.  3  Cowen,  382. 

It  is  required  also,  that  the  claim  of  title,  whether 
it  arises  upon  the  pleadings  or  on  the  trial,  should 
hQ  necessary,  oihQxwise  the  plaintiff  will  not  be  enti- 
tled to  recover  costs.  Thus,  in  an  action  for  a  tres- 
pass upon  enclosed  and  cultivated  lands,  j/o^i'e^s/oyi 
being  sufficient  to  maintain  the  action,  title  thereto 
need  not  be  shewn.  So,  where  lands  were  unen- 
closed and  unimproved  for  any  purpose,  except  that 
on  it,  there  were  two  buildings  used  as  a  black- 
smith's shop  and  store  house;  in  an  action  for  tres- 
pass for  taking  and  carrying  away  stones  therefrom, 
it  was  held,  that  title  did  not  come  in  question,  al- 
though the  plaintiff  offered  to  shew  title,  and  which 
was  not  done  because  admitted  by  the  defendant.  7 
Wendell,  495. 

In  order  to  recover  costs  in  these  cases,  whether 
the  claim  of  title  arises  upon  the  pleadings  or  comes 


206  plaintiff's  costs. 

in  question  on  the  trial  of  the  action,  a  certificate 
to  that  effect  must  be  granted  by  the  justice  or  ref- 
erees, who  tried  the  cause.  Upon  the  production  of 
such  certificate  to  the  clerk,  he  will  allow  the  plain- 
tiff costs  in  the  entry  of  judgment.  But  without 
such  certificate,  the  clerk  is  not  authorized  to  allow 
to  the  plaintiff  any  costs,  unless  he  recover  fifty  dol- 
lars or  more.  It  seems  that  such  certificate  when 
granted  is  not  reviewable,  and  is  therefore  final.  It 
is  an  crder,  and  not  included  among  the  orders 
made  by  a  single  judge,  from  which  an  appeal  may 
be  taken  to  the  general  term.   Code,  §  849. 

Costs  are  also  allowed  of  course  to  the  plaintiff 
upon  a  recovery, 

2.  In  an  action  to  recover  the  possession  of  per- 
sonal property. 

In  this  action,  however,  the  costs  are  restricted  to 
the  amount  of  the  recovery,  and  the  plaintiff  can  re- 
cover no  more  costs  than  damages,  unless  he  recov- 
ers fifty  dollars  or  more,  or  unless  the  damages,  to- 
gether with  the  value  of  the  property  amounts  to 
fifty  dollars.  Such  value  must  be  determined  by 
the  jury,  court  or  referee,  by  whom  the  action  is 
tried. 

There  is  a  dis'.inction  between  costs  and  disl>icrse- 
ments,  and  therefore  in  every  case  where  the  prevail- 
ing party  recovers  any  costs,  he  is  entitled  to  recover 
his  necessary  disbursements  also. 

Section  311  of  the  Code  provides  that  "the  clerk 
shall  insert  in  the  entry  of  judgment,  on  the  appli- 
cation of  the  prevailing  party,  upon  two  days'  no- 
tice to  the  other,  the  sum  of  the  charges  for  costs, 
and  the  necessary  disbursemcn's  allowed  by  law." 


plaintiff's  costs.  207 

It  is  not  necessary  that  the  prevailing  party  should 
recover  full  costs,  to  entitle  him  to  his  clishurse- 
ments;  but  if  he  recover  any  costs,  he  is  allowed  his 
disbursements  in  addition.  Thus,  in  an  action  to 
recover  the  possession  of  personal  property,  if  he  re- 
cover but  ten  dollars,  he  can  recover  but  ten  dollars 
costs;  but  he  may,  in  addition,  recover  his  disburse- 
ments. In  the  old  "fee  bill,"  no  such  distinction 
was  made  between  costs  and  disbursements.  Taylor 
vs.  Gardner,  4  How.  Pr.  R.  69. 

So,  costs  are  allowed  of  course  to  a  plaintiff  upon 
a  recovery. 

3.  In  actions  in  which  the  people  of  this  state 
are  a  party,  excepting  for  penalties  not  exceeding 
one  hundred  dollars. 

In  actions,  originally  commenced  in  a  court  of 
a  justice  of  the  peace,  where  a  defence  of  title  was 
made,  or  where  title  came  in  question  on  the  trial. 

In  actions  upon  accounts,  where  the  sum  total  of 
the  accounts  of  both  parties  exceed  four  hundred 
dollars. 

In  actions  for  an  assault,  battery,  false  imprison- 
ment, libel,  slander,  malicious  prosecution,  criminal 
conversation  and  seduction;  and 

In  actions  against  executors  and  administrators, 
as  such. 

The  foregoing  actions  cannot  be  tried  by  a  justice 
of  the  peace,  and  hence  the  plaintiff  upon  a  re- 
covery, is  allowed  costs  of  course;  and  he  will  be 
entitled  to  his  full  costs  and  disbursements,  in  all 
such  cases,  except,  that  in  actions  for  assault,  bat- 
tery, false  imprisonment,  libel,  slander,  malicious 
prosecution,  criminal  conversation  or  seduction,  if 
the  plaintiff  recovers  less  than  fifty  dollars  damages, 


208  ,  PROMISSORY    NOTES,    ETC. 

he  can  recover  no  more  costs  than  damages.  He 
will,  however,  be  entitled  to  recover  his  disburse- 
ments in  addition.  See  4  Hoiv.  Pr.  R.  67. 

In  all  actions  for  the  recovery  of  money,  where 
the  plaintiff  recovers  fifty  dollars  or  more,  he  is  en- 
titled to  full  costs,  and  his  disbursements. 

Promissory  notes,  S^c] — Where  several  actions  are 
brought  on  one  bond,  recognizance,  promissory  note, 
bill  of  exchange,  or  other  instrument  in  writing,  or 
in  any  other  case,  for  the  same  cause  of  action, 
against  several  parties  who  might  have  been  joined 
as  defendants  in  the  same  action,  no  costs,  other 
than  disbursements,  will  be  allowed  to  the  plain- 
tiff in  more  than  one  of  such  actions.  Cide,  §  304. 
Thus,  in  an  action  upon  a  promissory  note,  a  joint 
suit  against  the  makers  and  endorsers  is  authorized. 
Code,  §  120.  If,  in  such  a  case,  several  suits  are 
brought,  the  plaintiff  can  recover  costs  in  only  onQ 
of  such  suits,  and  his  disbursements  in  the  others. 
The  plaintifi'  may  elect  in  whicdi  of  such  :-uits  he 
will  take  the  costs  and  in  which  he  will  take  the 
disbursements. 

If,  at  the  time  of  commencing  a  suit  against  the 
parties  to  a  bill,  note,  or  other  instrument,  some  of 
such  parties  are  out  of  the  state,  or  are  secreted 
within  the  state,  separate  suits  may  afterwards  be 
instituted  against  such  parties,  and  the  plaintiff  will 
be  entitled  to  recover  his  costs  and  disbursements 
therein. 

Dc.fmdani's  costs.'] — In  the  several  actions  which 
have  been  spoken  of,  costs  will  be  allowed  of  course 
to  the  defendant,  unless  the  plaintiff  is  entitled  to 
costs  therein.    Code,  §  305.     In  other  words,  in  all 


^COSTS  IN  THE  DISCRETION  OF  THE  COURT.  209 

such  actions,  if  the  plaintiff  fails  to  recover  suffi- 
<;ient  damages  to  entitle  him  to  costs,  he  will  have 
to  pay  costs  to  the  defendant,  who  may  have  them 
allowed  to  him  in  the  judgment. 

Costs  in  the  discretion  of  the  Court.] — In  all  actions, 
other  than  those  which  have  been  mentioned,  the 
costs  are  entirely  in  the  discretion  of  the  court,  who 
may  grant  or  refuse  them,  as  shall  be  just  and  equi- 
table between  the  parties.  So,  where  there  are  sev- 
em\  defendants,  not  united  in  interest,  who  make 
separate  defences,  by  separate  answers,  and  the 
plaintiff  fails  to  recover  judgment  against  all,  it  is 
-discretionary  with  the  court,  to  award  costs  or  not, 
to  such  defendants  as  have  judgment  in  their  favor 
or  to  any  of  them.   Code,  §  306. 

There  are  cases,  however  in  which  both  plaintiff 
and  defendants  in  the  same  action  will  be  entitled  to 
costs.  Thus,  in  actions  for  the  partition  of  lands  ; 
or,  actions  in  relation  to  a  trust  estate,  wheie  the 
plaintiff  fails,  and  the  like.  In  these  cases,  both 
parties  are  entitled  to  costs,  to  be  paid  out  of  the 
property  or  estate. 

Cast^  against  infant  plaintiff.] — Where  the  costs  of  an 
action  are  adjudged  against  an  infant  plaintiff,  his 
guardian,  by  whom  he  appeared  and  prosecuted  the 
action  is  liable  to  pay  them.  And  where  judgment 
for  such  costs  has  been  entered,  the  payment  thereof 
may  be  enforced  by  an  attachment  against  the  guar- 
dian. Code,  §  316. 

Costs  by  or  against -adminisfraf or s  and  trustees.] — Ordi- 
narily, executors  and  administrators,  who  necessa- 
rily prosecute  or  defend  actions  in  regard  to  the  es- 
tate they  represent,  are  not  personally  liable  to  pay 

14 


210    COSTS  AGAINST  EXECUTORS  AND  ADMINISTRATOKS^.- 

costs  to  the  prevailing  adverse  party.  So,  trustees- 
ofan  express  trust,  and  persons  expressly  authorized 
by  statute,  are  in  like  manner,  usually  exempt  from 
the  payment  of  costs  personally.  But  in  all  such 
cases,  the  prevailing  party  is  allowed  his  costs,  and 
they  are  chargeable  Uj^on,  and  may  be  collected  out 
of  the  estate,  fund  or  party  represented.  There  are 
eases,  however,  where  the  court  may  direct  the 
costs  to  be  paid  personally  by  the  executor,  admin- 
istrator, trustee  or  other  person,  as  where  they  have 
been  guilty  of  mismanagement  or  bad  faith  in  pros- 
ecuting or  defending  the  action.  Code,  §  317. 

In  regard  to  executors  and  administrators,  it  is 
provided  by  §  317  of  the  Code,  that  costs  shall  not  be 
allowed  against  them,  in  cases  where  they  are  now 
exempted  therefrom  by  §  41  of  title  3,  chap.  6,  part 
2,  of  Rev.  Stat.     2  Rev.  Stat.  90 

The  Revised  Statutes  provide  that  in  suits  against 
executors  or  administrators,  no  costs  shall  be  reco- 
vered against  them;  nor  shall  any  costs  be  recov- 
ered against  them  to  be  levied  of  their  property  or 
of  the  property  of  the  deceased,  unless  it  appear 
that  the  demand  on  wh:ch  the  action  was  found- 
ed was  presented  within  six  months  from  the 
first  publication  of  the  notice  to  creditors,  and  was 
unreasonably  resisted  or  neglected,  or  that  tlie  de- 
fendant refused  to  refer  the  same,  pursuant  to  a 
previous  section  ;  in  which  cases  the  court  may  di- 
rect such  costs  to  be  levied  of  the  property  of  the 
defendants,  or  of  the  deceased,  as  shall  be  just,, 
having  reference  to  the  facts  that  appeared  on  the 
trial.  Such  facts  are  to  be  certified  by  the  judge 
before  whom  the  trial  was  had. 


COSTS    IN    ACTIONS    BY    THE    PEOPLE. 


211 


Under  this  statute  it  has  been  decided,  that  costs 
will  not  be  allowed  against  executors,  on  the  ground 
that  they  omitted  to  give  the  requisite  notice  for 
creditors  to  exhibit  their  claims,  if  the  suit  was 
brought  before  the  time  for  giving  the  notice  had 
arrived.  6  Hill  386.  Nor,  where  a  claim  was  pre- 
sented to  one  of  several  executors,  which  he  dispu- 
ted, but  declined  to  refer,  saying  he  wished  to  con- 
sult his  co-executors  before  doing  so,  and  the  cre- 
ditor, without  waiting  a  reasonable  time  for  that 
purpose,  commenced  a  suit.  Ibid. 

So,  if  the  executor  omits  to  give  the  notice  to 
creditors  required  by  law,  costs  will  be  collectable 
out  of  the  estate  of  the  deceased.  22  Wendell,  571. 

In  suits  against  executors  the  plaintiff  cannot 
enter  judgment  for  costs  without  fiist  obtaining 
leave  from  the  court.  6  Hill,  386.  And  so,  in  ac- 
tions prosecuted  or  defended  by  trustees  of  an 
express  trust,  or  a  person  expressly  authorized  by 
statute,  the  leave  of  the  court  must  be  obtained, 
before  a  judgment  for  costs  can  be  entered.  Such 
leave  may  be  given  at  the  trial,  or  upon  a  motion 
subsequently  made  for  that  purpose. 

Costs  in  actions  hy  the  people.] — In  actions  prosecuted 
in  the  name  of  the  people  of  this  state,  for  the  re- 
covery of  money  or  property,  or  to  establish  a  right 
or  claim  for  the  benefit  of  any  county,  city,  town, 
village,  corporation  or  person,  if  the  costs  of  the 
action  are  awarded  against  the  plaintiff,  they  are 
not  recoverable  from  the  people,  but  the  county, 
city,  town,  village,  corporation  or  person,  for  whose 
benefit  such  action  was  prosecutcjd,  will  be  liable 
for   such    costs.    Code,  §  320.     But  in  civil  actions 


212  COSTS    AGAINST    ASSIGNEES. 

prosecuted  in  the  name  of  the  people  of  this  state, 
by  an  officer  duly  authorized  for  that  purpose,  the 
people  are  liable  for  costs  in  the  same  cases,  and  to 
the  same  extent,  as  private  parties.  If  a  private 
person  is  joined  with  the  people  as  plaintiff,  he  is 
liable  in  the  first  instance  for  the  defendant's  costs^ 
which  cannc/t  be  recovered  from  the  people,  till 
after  an  execution  has  hr.en  issued  against  the  pri- 
vate party,  and  returned  unsatisfied.  Code,  §  319. 

Costs  against  assignees  ] — If  a  plaintiff,  after  having 
commenced  a  suit,  assign  to  a  third  person,  not  a 
party  to  the  action,  the  subject  matter  of  the  suit, 
such  assignee  will  be  liable  in  the  same  manner,  as 
if  he  was  a  party.  And  so,  when  a  person  not  a 
party  to  the  suit,  becomes  the  owner  of  the  cause 
of  action,  otherwise  than  by  assignment,  such  person 
will  be  liable  for  the  costs  of  the  suit.  Code,  §  321. 

Costs  on  review  in  special  proceedings.] — Where  the 
decision  of  a  court  of  inferior  jurisdiction  in  a  spe- 
cial proceeding,  (as  it  may  be  in  cases  provided  by 
law,  as  in  cases  of  summary  proceedings  to  recover 
the  possession  of  lands  when  a  common  law  certi- 
orari lies  to  review  the  proceedings,  and  in  similar 
cases,)  is  brought  into  the  Supreme  Court  for  review. 
Such  proceeding  for  the  purposes  of  costs  is  deemed 
an  action  at  issue,  on  a  question  of  law,  from  the 
time  the  same  is  brought  into  the  Supreme  Court, 
and  the  costs  thereon  are  awarded  and  collected  in 
such  manner  as  the  court  may  direct,  according  to 
the  nature  of  the  case.  The  rate  of  costs  that  would 
be  recoverable  in  such  cases,  are  the  same  as  in 
issues  of  law,  a?  demurrers,  in  the  Supreme  Court, 
and  not  tiie  costs  on  appeal  to  the  Supreme  Court. 


AMOUNT    OF   COSTS.  213 

Costs  of  putting  off  trial] — Upon  an  applicntion  to 
put  off  the  trial  of  a  cause,  either  to  a  court  or  re- 
ferees, the  court  or  referees,  have  the  power  to  im- 
pose as  a  condition  of  granting  the  postponement, 
the  payment  of  a  sum  not  exceeding  ten  dollars, 
besides  the  fees  of  witnesses.  Code,  §  314. 

Costs  of  motions.] — The  costs  of  making  or  resisting 
motions  are  entirely  in  the  discretion  of  the  court; 
when  allowed,  however,  they  cannot  exceed  the 
sum  of  ten  dollars. 

AMOUNT    OF    COSTS    RECOVERABLE. 

1.  To  the  plaintiff . — In  cases  where  the  plaintiff  is 
entitled  to  recover  costs,  they  are  as  follows: 

If  the  action  be  one  where  judgment  upon  failure 
to  answer,  may  be  had  without  application  to  the 
court,  and  no  answer  or  demurrer  is  put  in,  seven 
dollars,  and  the  necessary  disbursements  allowed  by 
law.  If  the  action  be  one,  where  judgment  upon 
failure  to  answer  can  only  be  taken  on  application 
to  the  court,  and  no  answer  or  demurrer  is  put  in, 
twelve  dollars,  besides  the  disbursements. 

In  actions  where  an  issue  is  joined,  by  the  service 
of  an  answer  or  demurrer,  the  plaintiff's  costs  are  as 
follows : 

For  all  proceedings  before  notice  of  trial,  if  the 
action  be  one  where  judgment  upon  failure  to  an- 
swer, might  have  been  had  without  application  to 
the  court,  seven  dollars;,  if  the  action  be  one  where 
judgment  could  only  be  taken  on  application  to  the 
court,  tivelve  dollars. 

For  all  subsequent  proceedings  before  trial,  seven 
dollars. 

For  the  trial  of  an  issue  cf]aw,  fifteen  dollars. 

For  the  trial  of  an  issue  oi^  i^act,  fifteen  dollars. 


214  COSTS    UPON   APPEAL. 

For  the  trial  of  an  issue  of  fact  and  of  law,  when 
tried  at  the  same  time,  twenty  dollars. 

2.  To  the  defendant. — For  all  proceedings  before  no- 
tice of  trial,  five  dollars. 

For  all  subsequent  proceedings  before  trial,  seven 
dollars. 

For  the  trial  of  an  issue  of  law  or  fact,  tivelve  dol- 
lars. 

For  the  trial  of  an  issue  of  law  and  fact,  when 
tried  at  the  same  time,  fifteen  dollars. 

To  either  party  on  appeal  to  the  Court  of  Appeals, 
before  argument,  twenty-five  dollars  ;  for  the  argument, 
fifty  dollars,  besides  the  disbursements. 

To  either  party  on  an  appeal  to  the  Supreme  Court, 
from  ?i  judgment  of  a  single  judge  of  the  same  court, 
or  of  an  inferior  court,  before  argument,  fifteen  dol- 
lars; for  argument,  thirty  dollars,  besides  disburse- 
ments. («)  Livingston  v.  Miller,  4  How.  Pr.  R.  42;  Wil- 
son V.  Allen,  Id.  54. 

(a)  The  sixth  sub.  §:W7  of  the  Code,  is  as  follows:  "  To  either  party  on  ap- 
peal, excepting  to  the  Court  of  Appeals,  before  argument,  fifteen  dollars;  for 
argument,  thirty  dollars;  hut  this  provision  shall  not  apphjto  appeals  in  caes  uther 
than  those  mentioned  in  section  349."  Section  34'J  relates  to  appeals  from  order* 
made  by  a  single  judge  of  the  same  court.  If  section  307  is  to  be  read  literally, 
no  costs  are  recoverable  upon  appeals  h-om  judgments  in  the  Supreme  Court,  or 
of  inferior  'ourts,  and  the  large  sum  of  forty-five  dollars,  besides  disbursements, 
are  given  upon  appeals  from  orders.  That  the  Legislature  intended  directly 
the  reverse  of  this,  we  think  cannot  soberly  be  doubted.  There  is  every  rea- 
son in  favor  of  giving  these  conts  in  cases  of  appeals  from  judgments,  and 
against  giving  them  in  appeals  from  orders.  This  section  has  not,  except  in 
one  or  two  cases,  received  a  judicial  construction,  and  those  cases  are  not  re- 
l)or(eil;  but  they  are  understood  to  be  in  favor  of  applying  the  costs  to  apjieals 
from  judgments,  and  not  from  orders.  In  the  construction  of  a  statute,  the  in- 
tentii,n  of  the  law  makers  is  to  control.  In  the  language  of  Thompson,  J.  (Peo- 
ple V.  Utica  Ins.  Co.  15  John.  Rep.  380,)  "Such  construction  ought  to  be  put 
ujion  a  statute  as  may  best  answer  the  intention  which  the  makers  had  in  view. 
And  this  intention  is  sometimes  to  be  collected  from  the  cause  or  necessity  of 
making  tlie  statute,  and  sometimes  from  other  circumstances;  and  whenever 
such  intention  can  be  iliscovered,  it  ought  to  be  followed  with  reason  and  dis- 
cretion in  the  construction  of  the  statute,  although  such  construction  seem  con- 
trary to  the  Utter  of  the  statute.    Where  any  words  are  obscure  or  doubtful,  the 


COSTS   UPON    APPEAL.  215 

"Oosts  on  appeals  from  orders  made  by  a  single 
judge  of  the  same  court,  are  in  the  discretion  of  the 
court.    Savage  §-  Cowen  v.  Darroto,  4  Hoiv   Pr.  R.  74. 

inteniion  of  the  Legislature  is  to  be  resorted  to,  in  order  to  find  the  meaning 
of  tlie  words.  A  thing  which  is  within  the  intention  of  tlie  makers  of  the 
statute,  is  as  much  within  the  statute  as  if  it  were  within  the  letter;  and  a 
thing  which  is  within  tiie  letter  of  the  statute,  is  not  xvithin  ti.e  statute,  unless  it 
be  uitliin  the  intention  of  the  makers.'" 

Now,  applying  tliis  rule  of  construction  to  the  statute  under  consideration, 
the  only  difficulty  that  will  be  presented,  is  to  discover  the  intention  of  the  Le- 
gislature. There  are  various  ways  of  ascertaining  what  the  law  makers  in- 
tended, either  or  all  of  which  may  be  resorted  to,  to  aid  in  the  construction. 
The  language  used,  the  preamble,  other  parts  of  the  same  statute,  the  neces- 
sity which  produced  it,  and  other  circumstances,  may  be  called  in,  to  aid  in  ar- 
riving at  the  intention.  The  letter  of  the  law  is  its  bodij,  the  intention  of  the 
Legislature  is  its  spirit;  and  its  spirit  must  control,  although  it  be  inconsis- 
tent with  its  letter.  By  section  304,  it  is  provided  that  the  plaintifT  shall  be 
allowed  costs  of  course  upon  a  recovery  in  the  cases  eniimerated  in  that  sec- 
tion, which  incluiles  almost  every  species  of  case. 

I3y  section  305,  it  is  provided  that  the  defendant  shall  be  allowed  costs  of 
course,  in  all  cases  unless  the  plaintiff  is  allowed  costs  therein.  Thus,  the  plain- 
tiffor  defendant,  is  allowed  costs,  of  course,  that  is  absolutely,  ii  every  case. 
These  sections  give  to  the  parties,  costs,  not  only  for  the  trial,  but  also  upon  ap- 
peal, so  that  ujion  any  construction  one  of  the  parties  upon  an  appeal  from  a 
judgment  of  a  single  judge  to  the  Supreme  Court,  is  entitled  to  costs,  and 
the  only  tioubt  there  can  be,  is,  as  to  the  amount  of  those  costs.  Section  307 
prescribes  the  amount  of  costs  which  the  party  is  entitled  to,  when  allowed  to 
himatall.  These  different  sections  are  in  immediate  connection  with  each 
otTier,  and  should  be  all  taken  together  in  giving  a  construction  to  any  part  of 
them.  It  is  certainly  unreasonable  to  suppose,  tliat  after  absolutely  giving 
costs  to  the  party,  as  well  upon  appeal  as  in  other  cases,  the  legislature  intend- 
ed in  the  same  connection  to  say,  that  such  party  should  not  have  costs,  yet 
they  do  suij  so.  By  section  30(j,  w^hen  a  new  trial  is  granted,  or  when  a  judg- 
ment is  affirmed  in  part  and  reversed  in  part,  the  costs  are  in  the  discretion  of 
the  court.  Why  put  them  in  the  discretion  of  the  court  if  they  intended  to  give 
no  costs  upon  appeal?  For  tlic  only  manner  in  which  questions  can  be  pre- 
sented for  review  to  the  Supreme  Court,  is  by  appeal,  and  they  cannot  grant  or 
refuse  a  new  trial  or  affirm  or  reverse  a  judgment,  except  it  comes  before  them 
upon  appeal.  If,  therefore,  section  307,  sub.  6,  is  to  receive  a  literal  con  truc- 
tion,  the  court  may  in  the  exercise  of  their  discretion,  give  costs,  in  direct  and 
most  palpable  opposition  to  it.  In  addition  to  this,  in  all  appeal  cases,  security 
for  costs  on  the  appeal  must  be  given  when  by  the  literal  rea  ling  of  the  section 
under  consideration,  no  costs  are  allowed.  It  is  fair  to  presume,  that,  the  leg- 
islators have  made  a  mista.e  and  have  written  in  the  words  "other  than  those" 
when  they  intended  to  leave  them  out.  So  that  it  would  read,  "but  this  pro- 
vision shall  not  apply  to  appeals  in  cases  mentioned  in  section  349,"  thus  ex- 
cluding from  its  operation  appeals  from  orders.  If,  therefore,  it  is  evident 
that  such  was  the  intention  of  the  legislature,  and  that  they  have  made  a  mis- 
take,in  using  words  which  convey  a  different  meaning,  has  the  court,  in  giving 
a  construction  to  the  statute,  the   right  to  strike  out  tvords  to  carry  into  effect 


216  ADDITIONAL    ALLOWANCES. 

To  either  party,  for  every  circuit  or  term,  at  which 
the  cause  is  necessarily  on  the  calendar,  and  not 
reached  or  is  postponed,  excluding  that  at  which  it 
is  tried  or  heard,  ten  dollars.  AVhen  a  cause  is  re- 
ferred at  the  circuit,  the  prevailing  party  is  entitled 
to  ten  dollars  costs  of  the  circuit,  to  be  included  as 
part  of  his  costs,  in  the  judgment.  Benton  v.  Sheldon 
and  others,   1  Code  Rep.  134. 

Additional  alloivances.} — In  addition  to  the  items  of 
costs,  tO;  which  the  prevailing  party  is  entitled,  as 
has  been  before  stated,  the  court  has  the  power,  in 
certain  cases,  to  grant  an  extra  allowance.  Thus, 
if  the  action  be  for  the  recovery  of  money,  or  of 
real  or  personal  property,  the  court  may,  if  the  ac- 
tion is  difficult  or  extraordinary,  and  a  trial  has  been 
had,  make  an  allowance  of  not  more  than  ten  per 
cent,  on  the  recovery  or  claim,  for  any  amount  not 
exceeding  five  hundred  dollars;  and  not  more  than 
five  per  cent  for  any  additional  amount.  Code,  §  308. 

Under  this  section,  it  has  been  decided  that  the 
percentage  will  not  be  allowed  merely  on  account 
of  a  defence  being  interposed  for  delay.  Hall  vs. 
Prentice,  1  Code  Rep.,  81. 

a  plain. and  manifest  intention?  The  courts  liave  frequently  changed  words  in  a 
atatute  in  order  to  give  effect  to  tlie  intent  of  the  law  makers.  Thus  they  have 
construed  "may"  to  mean  "must,"  (1  Pef.  64.)  and  "void"  to  mean  "voidable." 
13  Mass.  515;  6  Pick.  483.  So  in  wills,  "or"  to  mean  "and,"  (6  John.  Rep  54.) 
thus  changing^  the  language  employed  by  tlie  legislature  or  testator.  This  i% 
upon  the  principle  that  it  is  necessary,  in  order  to  give  full  effect  to  the  inten~ 
tion.  And  the  court  will  enlarge  or  restrain  the  language  of  a  statute,  if  the- 
spirit  of  the  act  re(iuire  it.  14  Ma^s.  88,  92.  1  Pick.  248,  458.  1  Mass.  3S3.  Nor 
is  it  necessary  that  the  words  of  the  statute,  themselves  should  be  ambiguous. 
1,  Pick,  248.  It  is  sutTicicnt  that  they  do  not  express  the  intention  and  mean- 
ing of  the  law  makers.  In  looking,  therefore,  at  the  statute  under  considera- 
tion, and  applying  these  rules  of  construction  to  it,  we  must  necessarily  arrive 
at  the  conclusion,  that  costs  upon  appeals  to  the  Supreme  Court,  from  judg- 
ments entered  under  the  direction  of  a  single  judge,  and  judgments  of  inferior 
courts,  arc  recoverable,  notwithstanding  section  307  of  the  Code  literaUi/  dis- 
allows  them.  The  abo\  e  note  was  printed  before  the  author  saw  the  case  cited 
in  the  text.  • 


PERCENTAGE   HOW   COMPUTED.  217 

Parker  J.  puts  it  upon  the  ground  that  the  case  is 
neither  difficult  nor  extraordinary.  'I'he  defendant  had 
answered,  but  did  not  appear  at  the  trial,  and  an 
inquest  was  taken.  This  and  similar  decisions  were 
made  before  the  Code  was  amended.  It  is  now 
provided  that  such  allowance  or  percentage  may  be 
made  in  any  case,  where  the  prosecution  or  defence 
has  been  unreasonably  or  unfairly  conducted.  Codcy 
§  308. 

A  defence  interposed  merely  for  delay,  would 
doubtless  be  regarded  as  unreasonable ;  and  if  the 
court  are  satisfied  that  such  was  the  object,  they 
will  allow  the  percentage.  The  question,  however, 
has  not  been  decided,  {a) 

Such  allowances  may  likewise  be  made,  upon  the 
recovery  of  judgment  in  an  action  for  the  partition 
of  real  property,  or  for  the  foreclosure  of  a  mortgage, 
or  in  which  a  warrant  of  attachment  has  been 
issued,  or  for  the  construction  of  a  will  or  other  in- 
strument in  writing,  and  in  proceedings  to  compel 
the  determination  of  claims  to  real  property.  In 
these  cases,  the  allowance  is  of  course,  in  the  dis- 
cretion of  the  court,  and  it  is  not  necessary  that  the 
case  should  be  difficult  or  extraordinary,  or  that  the 
prosecution  or  defence  should  have  been  unreason- 
ably or  unfairly  conducted. 

Per  centage  how  computed.] — The  amount  upon  which 
the  per  centage  is  to  be  computed,  is  as  follows:  Code 
§  309,  sub.  1,  2. 

If  the  plaintiff  recovers  judgment,  it  must  be  upon 
the  amount  of  money,  or  value  of  the  property  re- 
covered, or  claimed,  or  attached,  or  affected  by  the 

(a)  Since  the  work  has  been  in  press,  this  point  has  been  decided.  See  IVil- 
lard  V.  Andrews,  4  How.  Pr.  R.  65. 


213  INTEREST    ON   VERDICT. 

construction  of  the  will,  or  sought  to  be  partitioned, 
or  the  amount  due  upon  the  mortgage  in  an  action 
for  foreclosure. 

If  the  defendant  recover  judgment,  it  must  be  up- 
on the  amount  of  money,  or  the  value  of  the  proper- 
ty claimed  by  the  plaintiff,  or  attached,  or  affected 
by  the  construction  of  the  will,  or  of  the  defendant's 
interest  in  the  property  sought  to  be  partitioned,  or 
the  amount  claimed  in  an  action  for  foreclosure  of  a 
mortgage.  Code,  §  309,  sub.  2. 

How  asctrtai?ied.] — The  amount  or  value  upon  which 
the  per  centage  is  to  be  computed,  must  be  deter- 
mined by  the  jury,  court  or  referees,  by  whom  the 
action  is  tried,  or  judgment  rendered,  or  by  the  com- 
missioners appointed  to  make  partition. 

The  order  for  the  extra  allowance,  should  be  made 
by  the  judge  before  whom  the  action  is  tried,  or  the 
judgment  rendered  Rule  86.  Sackel  v.  Ball,  4  How, 
Pr,R.  71. 

In  actions  tried  by  referees  however,  the  cowi,  not 
the  referees,  can  make  the  allowance.  As  in  this 
case  the  application  must  necessarily  be  to  the  court 
at  a  special  term.  Tile  referees  who  try  the  cause 
however,  are  better  able  to  determine  whether  the 
case  be  one  in  which  the  allowance  ought  to  be 
made,  than  a  judge  who  derives  his  knowledge}  of 
the  facts  from  the  papers  used  upon  the  motion,  and 
their  certificates  will  have  great  weight  upon  the 
motion. 

Interest  on  verdict.] — When  the  judgment  is  for  the 
recovery  of  money,  interest  from  the  time  of  the 
verdict  or  report,  until  judgment  is  finally  entered, 
must  be  computed  by  the  clerk,  and  added  to  the 
costs  of  the  party  entitled  thereto. 


clerks'  fees.  219 

Costs  on  settlement  of  the  action.]— Vpon  a  settlement 
of  the  action,  at  any  time  before  judgment,  tlie 
plaintiff  is  entitled  to  the  costs,  at  the  rate  before 
stated,  up  lo  tie  time  of  the  settlement.  Thus  in 
an  acticn  upon  a  promissory  note,  if  settled  before 
answer  put  in,  the  plaintiff  will  be  entitled  to  seven 
dollars,  and  in  actions  where  an  application  to  the 
court  would  be  necessary,  he  will  be  entitled  to 
twelve  dollars.  Rockefeller  v.  Weiderwax,   2  Code  Rrp ,  3. 

Clerks'  fees.] — The  clerk  of  the  county  where  the 
trial  is  had,  who  is  also  clerk  of  the  court,  is  enti- 
tled to  receive  on  every  trial,  from  the  party  bring- 
ing it  on,  the  sum  of  one  dollar;  and  for  entering  a 
judgment,  fifty  cents,  except  when  the  clerk  is  a 
salaried  officer,  and  in  such  cases,  the  clerk's  fees 
for  entering  judgment  is  one  dollar. 

When  a  judgment  is  docketed  in  a  county,  other 
than  that  in  which  it  is  originally  entered,  by  the 
filing  of  a  transcript,  the  clerk  is  entitled  to  a  fee  of 
six  cents. 

The  clerk  is  not  entitled  to  a  trial  fee,  unless  the 
cause  is  actually  tried  It  being  on  the  calendar 
and  referred,  does  not  entitle  the  clerk  to  a  trial  fee. 
Benton  Y.  Sheldon,  1  Cade  Rep.,  134. 

Entering  costs  in  the  judgment.] — It  is  the  duty  of  the 
clerk  to  insert  in  the  entry  of  judgment,  on  the  ap- 
plication of  the  prevailing  party,  upon  two  days' 
no  ice  to  the  other,  the  sum  of  the  charges  for  costs, 
and  the  necessary  disbursements  and  fees  of  officers 
allowed  by  law,  including  the  compensation  of  r.^f- 
erees,  and  the  expense  of  printing  the  papers  upon  an 
appeal. 

Adjusting  costs ^ — Formerly  the  costs  to  which  the 


220      CORRECT    OR    SET    ASIDE    ADJUSTMENT    OF  COSTS. 

party  was  entitled  were  taxed  by  one  of  the  officers 
of  the  court,  and  after  such  taxation,  were  inserted 
in  the  judgment  record.  A  similar  duty  now  de- 
volves upon  the  clerk  of  the  county,  v/here  the  judg- 
ment roll  is  to  be  filed,  who  is  required  to  settle 
and  adjust  the  costs,  upon  the  application  of  the 
party  entitled  to  them.  If  an  objection  is  made  to 
any  of  the  items  of  the  costs  or  disbursements,  it  is 
the  duty  of  the  clerk  to  determine  such  objection, 
and  allow  or  disallow  the  item  objected  to.  The 
objections  must  be  specifically  taken,  and  if  the 
clerk  requires  any  evidence  to  enable  him  to  deter- 
mine the  objection  it  must  be  furnished  to  him,  by 
affidavit  or  other  proof 

Motion  to  correct  or  set  aside  adjustment  of  costs.'] — If 
either  party  is  dissatisfied  with  the  adjustment  of 
the  costs  by  the  clerk,  he  may  move  the  court  to 
correct  or  set  it  aside.  Whipple  y.  U  illiams,  4  How.  Pr. 
Rep.,  28  ;  Livingston  v.  Miller,  Id.  42.  This  is  con- 
ducted, in  all  respects,  like  other  special  motions. 
An  affidavit  must  be  made  of  the  proceedings  be- 
fore the  clerk,  and  it  being  in  the  nature  of  a  review 
of  the  decisions  of  the  clerk,  the  same  objection  and 
affidavits  made  and  used  before  the  clerk  only,  can 
be  used  upon  the  motion  to  correct  or  set  aside. 

Upon  the  motion  the  court  may  refer  it  back  to 
the  clerk  for  readjustment,  or  may  make  the  correc- 
tions without  such  reference.  In  either  case  the 
order  should  be  that  the  amount  deducted  from  the 
costs,  be  deducted  from  the  judgment  and  execu- 
tion. 


THE    EXECUTION.  221 

SECTION  XII. 

Of  the  Execution. 

An  execution  is  tlie  process  issued  by  the  attorney 
to  enforce  the  judgment.  Formerly,  an  execution 
issued  out  of  the  court,  was  under  seal,  tested  in  the 
name  of  the  chief  justice  or  first  judge,  and  was 
subscribed  by  the  clerk.  AH  these  formalities  are 
now  dispensed  with,  and  the  execution  is  a  simple 
direction  to  the  sheriflf  or  other  officer,  requiring  him 
to  collect  the  judgment  or  deliver  the  real  or  per- 
sonal property,  according  as  the  judgment  is. 

Division  of  Executions.'] — As  the  execution  is  the 
process  used  for  the  enforcement  of  the  judgment, 
it  must  of  course  pursue  the  tenor  of  the  judgment 
strictly,  and  it  will  necessarily  assume  different 
forms,  according  to  the  nature  of  the  action  and  of 
the  recovery. 

There  are  three  kinds  of  executions:  one  against 
the  property  of  the  judgment  debtor,  another  against 
his  person,  and  the  third  for  the  delivery  of  the  pos- 
session of  real  or  personal  property,  or  such  delivery 
with  damages  for  Avithholding  the  same. 

These  will  be  noticed  separately. 

Executions  against  the  property  of  the  judg?ne?it  debtor.] 
— In  all  cases  where  a  general  judgment  is  render- 
ed, for  the  recovery  of  money,  in  favor  of  the  one 
parly  or  the  other,  an  execution  against  the  proper- 
ty of  the  judgment  debtor  may  be  issued  to  collect 
the  judgment.  This  execution  is  proper  in  all  cases, 
except  where  the  judgment  is  for  the  delivery  of 
the  possession  of  real  or  personal  property.     An  ex- 


222  EXECUTIONS  AGAlNSr    THE    PERSON. 

edition  against  the  pirson  of  the  judgment  debtor 
can  in  no  case  be  issued,  until  after  the  return  of 
an  execution  against  his  property,  unsatisfied  in 
whole  or  in  part. 

Tlie  execution  against  the  property  requires  the 
officer  to  satisfy  the  judgment  out  of  the  personal 
property  of  the  judgment  debtor,  and  if  sufficient 
personal  property  cannot  be  found,  then  to  satisfy 
the  same  out  of  the  real  property  belonging  to  such 
judgment  debtor,  on  the  day  when  the  judgment 
was  docketed  in  the  county,  to  which  the  execution 
is  issued,  or  at  any  time  thereafter.  Code,  §  289,  suh.  1. 
If  the  judgment  be  against  real  or  personal  proper- 
ty in  the  hands  of  personal  representatives,  heirs, 
devisees,  legatees,  tenants  of  real  property  or  trus- 
tees, the  execution  must  require  the  sheriff  to  sa- 
tisfy the  judgment  out  of  such  property.  Code,  §  289, 
suh.  2.  The  execution  against  the  property  of  the 
judgment  debtor,  generally,  may  be  issued  to  the 
sheriff  of  any  county  where  the  judgment  is  dock- 
eted. Code,  §  287.  So  executions  may  be  issued  at 
the  same  time  to  different  counties.  Id. 

Executions  against  th?.  pp.rson  ] — Upon  the  recovery 
of  a  judgment  in  any  of  the  cases  in  which  a  de- 
fendant may  be  arrested  and  held  to  bail,  pursuant 
to  §§  179,  181,  of  the  Code,  (see  ante,  p.  53)  and  the 
return  of  an  execution  against  the  property  of  the 
judgment  debtor,  unsatisfied  in  whole  or  in  part,  an 
execution  against  the  person  may  be  issued.  It  re- 
quires the  sheriff  to  arrest  the  judgment  debtor,  and 
commit  him  to  the  jail  of  the  county  until  he  shall 
pay  the  judgment,  or  be  discharged  according  to 
law.     Code,  §  289,  sub.  3.     It  is  sufficient  for  the  pur- 


EXECUTIONS.  223 

pose  of  charging  the  bail,  if  the  execution  against 
the  person  is  issued  to  the  countj^  where  the  action 
was  tried,  or  designated  in  tlie  complaint  for  the 
trial  thereof. 

Executions  for  the  delivery  of  the  possession  of  real  or 
personal  property.] — If  the  judgment  be  for  the  de- 
livery of  the  possession  of  real  or  personal  property, 
the  execution  must  require  the  sheriff  to  deliver  the 
possession  thereof  to  the  person  entitled  to  it.  It 
must  particularly  describe  it,  so  that  the  officer  may 
be  able  to  make  delivery  of  the  right  property.  If 
the  judgment  be  also  for  costs  and  damages,  or 
costs  and  rents  and  profits  as  it  may  be  in  actions 
for  the  recovery  of  either  real  or  personal  property, 
the  execution  should  at  the  same  time  require  the 
sheriff  to  satisfy  such  cotts,  damages  or  rents  out  of 
the  personal  property  of  the  party  against  whom  the 
judgment  vi^as  rendered.  And  if  a  delivery  of  the 
property  cannot  be  had,  then  the  execution  should 
also  require  the  sheriff  to  satisfy  the  value  of  the 
property  for  which  the  judgment  was  recovered. 
Such  value  must  be  specified  in  the  execution. 
And  if  sufficient  personal  property  cannot  be  found, 
then  to  satisfy  such  damages,  costs,  rent  and  value, 
out  of  the  real  property,  belonging  to  the  person 
against  wliom  the  judgment  was  rendered,  belong- 
ing to  him  on  the  day  when  the  judgment  was 
docketed  or  at  any  time  thereafter.  In  these  re- 
spects it  is  deemed  an  execution  against  the  proper- 
ty. Code,  §  289. 

When  execution  may  issue.] — An  execution  for  the 
enforcement  of  a  judgment  may  be  issued  at  any 
time  within  five  years  after  the  entry  of  judgment. 


224  EXECUTION'S. 

Consequently,  immediately  upon  docketing  the  ju<lg- 
ment,  the  party  in  whose  favor  it  is  rendered  may 
issue  execution.  Code,  §  283.  After  the  lapse  of  five 
years,  however,  from  the  entry  of  judgment,  an  ex- 
ecution can  issue  only  by  leave  of  the  court.  For 
which  purpose  a  motion  must  be  made,  on  notice 
to  the  adverse  party.  The  motion  is  made  in  the 
same  manner,  and  upon  like  notice  as  in  other  special 
motions.  As  to  which  see  post.  The  party  moving 
for  such  leave  must  establish  by  his  own  oath  or 
other  proof,  that  the  judgment  or  some  part  thereof, 
remains  unsatisfied  and  due.  The  motion  or  appli- 
cation for  leave  to  issue  execution  after  five  years, 
must  be  made  to  the  court  in  which  the  judgment 
was  rendered,  except  where  it  was  rendered  in  a 
court  of  a  justice  of  the  peace  or  in  a  justices'  or 
other  inferior  court  of  a  city  and  docketed  in  the 
office  of  the  clerk  of  the  county,  in  which  case  the 
motion  must  be  made  in  the  county  court  of  the 
county  where  the  judgment  was  rendered.  In  the 
city  and  county  of  New- York,  however,  the  motion 
must  be  made  to  the  court  of  common  pleas,  of  that 
city  and  county. 

Execution,  how  directed  and  what  to  contain. ^^ — The 
execution  must  be  directed  to  the  sheriff  of  the 
county,  or,  in  case  he  is  a  party,  or  interested  in 
the  judgment,  \o  the  coroners  of  the  county.  It 
must  be  subscribed  by  the  party  issuing  it,  or  by 
his  attorney,  if  he  have  one,  and  must  intelligibly 
refer  to  the  judgment,  stating  the  court,  the  county 
where  the  judgment  roll  or  transcript  is  filed,  the 
names  of  tlie  parties,  the  amount  of  the  judgment, 
if  it  be  for  money,  and  the  amount  actually  due 
thereon,  and  the  time  of  docketing  in  the  county 


EXECUTIONS.  225 

to  which  the  execution  is  issued,  and  must  require 
the  officer  to  satisfy  the  judgment,  or  deliver  the 
property,  according  as  the  judgment  is.  Code,  §  289. 

Execution,  ivhen  returnable.^ — The  execution  is  re- 
turnable within  sixty  days  after  its  receipt  by  the 
officer,  and  must,  within  that  time,  be  returned  by 
the  officer  to  the  clerk  of  the  county  with  whom 
the  record  of  judgment  is  filed.  The  sheriff  has  all 
the  time  within  the  sixty  days  to  make  the  execu- 
tion. And  a  return  cannot  be  enforced  until  the 
sixty  days  have  elapsed.  The  sheriff,  however, 
may  return  it  at  any  time,  even  one  day  after  the 
receipt  of  it.  Messenger  y.  Fisk,  1  Code  Rep.,  106,  and 
see  proceedings  supplemental  to  execution,  post. 

Where  the  judgment  dors  not  require  the  payment  of 
money  or  delivery  of  property. '\ — "Where  the  judgment 
requires  the  performance  of  some  act,  other  than  the 
payment  of  money  or  the  delivery  of  real  or  per- 
sonal property,  a  certified  copy  of  the  judgment 
must  be  served  on  the  party  against  whom  it  is 
given,  or  upon  the  person  or  officer  who  is  required 
by  the  judgment  or  by  law  to  obey  or  perform  the 
same.  His  obedience  thereto,  in  case  such  party 
or  person  or  officer  refuse,  may  be  enforced  by  the 
court,  as  for  a  contempt    Code,  §  285. 

And    in    case    the    sheriff  does   not   return    the 

execution  within  the  time  limited  for  that  purpose, 

a  notice  may  be  served  on  him,  requiring  him  to 

return  the  execution,  within  ten  days  thereafter,  or 

shew  cause,  at  a  special  term  to  be  mentioned  in 

the  notice,  why  an  attachment   should   not   issue 

against  him.  Rule    6. 

15 


CHAPTER  VI. 

OF  EXCEPTIONS,  OR  CASE  TO  MOVE  FOR  NEW  TRI- 
AL, OR  SET  ASIDE  NON-SUIT,  SPECIAL  VERDICT 
AND  DEMURRER  TO  EVIDENCE. 

The  practice  of  this  court  as  it  existed  previous  to 
the  adoption  of  the  Code  of  Procedure,  authorized 
either  party,  desiring  to  review  the  decisions  of  the 
circuit  judge,  in  admitting  or  rejecting  evidence,  in 
non-suiting  the  plaintiff  or  overruling  the  defence, 
and  in  applications  for  judgment  upon  special  ver- 
dicts, and  demurrer  to  evidence,  to  make  a  bill  of 
exceptions  or  case,  and  present  it  to  the  court  in 
banco  for  its  judgment. 

In  these  cases,  the  proceedings  were  stayed  upon 
the  verdict,  and  no  judgment  could  be  entered  un- 
til the  decision  of  the  court. 

The  Code  is  silent  upon  the  subject  of  the  practice 
of  making,  settling  and  arguing  a  case  or  excep- 
tions, except  that  in  trials  by  the  court,  where  a  ju- 
ry is  waived,  the  case  is  to  be  settled  according  to  the 
existing  p  actice.  But  as  there  is  nothing  in  the  ex- 
isting practice,  in  respect  to  making  and  settling  a 
case  or  exceptions  generally,  inconsistent  with  the 
provisions  of  I  ho  Code,  the  manner  is  regulated  by 
the  rules  and  practice  of  the  court  as  now  adopted. 
Rules  15  and  18. 

The  mode  of  bringing  the  exceptions  or  case  be- 
fore the  court  for  review,  is,  however,  essentially 
changed  as  will  be  noticed  hereafter. 


GRCfUNDS    OF   EXCEPTIONS.  227 

SECTION  I. 

Of  Exceptions. 

Exceptions  may  now  as  formerly,  be  taken  to  any 
•decision  of  the  judgo,  or  of  referees,  whether  the 
cause  is  tried  by  a  jury,  or  by  the  judge   without  a 

jury- 

Grounds  of  exceptions.'] — If  upon  the  trial   of  the 

cause,  the  judge  or  referees,  either  in  the  charge  of 
the  judge  to  the  jury,  or  in  admitting  improper  tes- 
timony, or  in  rejecting  legal  and  competent  evidence 
or  in  refusing  to,  or  in  non-suiting  the  plaintiff,  and 
generally,  in  deciding  any  question  of  law  raised  on 
the  tri  \\,  make  a  mistake  in  the  law,  the  counsel  on 
either  side  may  except  to  such  decision.  The  decis- 
ion, however  must  be  upon  some  point  of  law,  ari- 
sing upon  a  fact  not  denied,  in  which  either  party  is 
overruled  by  the  court ;  (1.  Cowen,  G22;)  or  for  non- 
suiting or  refusing  to  non-suit  the  plaintiff;  (6  Coiv- 
en,  484;)  or  to  notice  material  testimony,  or  rejecting 
proper  evidence;  (2  Cowen,  479;)  or  to  charge  upon  a 
question  of  law,  provided  his  attention  is  called  to  it, 
but  not  otherwise;  (6  Wend.  268;  8  Wend.  Ill;  13 
Wend.  41;)  or  for  charging  erroneously  upon  a  ques- 
tion of  law:  but  an  exception  will  not  lie  where 
there  is  no  error  in  point  of  law  in  the  charge,  al- 
though the  comments  of  the  judge  upon  the  evi- 
dence, strongly  indicate  an  opinion  adverse  to  the 
party  against  whom  the  verdict  is  rendered.  12 
Wend.  299;  11  Wend.  18;  14  Wend.  Ill ;  3  Barh.  S.  C. 
419.  But  a  charge  upon  an  immaterial  point  of  law, 
though  erroneous,  is  no  ground  for  an  exception,  uu- 


228  GROUNDS    OF   EXCEPTIONS. 

less  the  court  find  that  the  case  might  have  been  af- 
fected by  the  charge,  injuriously  to  the  party.  S 
Wend.  418  ;  1 1  Wend.  83.  So  where  the  judge  erred 
in  non-suiting  the  plaintiff,  if  upon  other  grounds 
the  action  could  not  be  maintained,  the  court  will 
not  grant  a  new  trial.  8  Wend.  494.  So,  where  the 
judge  erroneously  refuses  to  non-suit  the  plaintiff,  a 
new  trial  will  be  denied,  if  cither  party  subsequent- 
ly supplies  the  delect  by  evidence.  2  Wend.  56 \;  7 
iVend.  377 :  2  Hill  205.  Exceptions  will  not  lie,  for 
a  misdirection  of  the  judge  as  to  a  matter  of  fact. 
J  4  Johns.  R.  304.  Nor,  is  it  the  proper  remedy  where 
the  jury  find  a  verdict  against  evidence.  1  Wend. 
418;  lA  Johns.  R.  304.  Nor  are  matters  resting  in 
the  discretion  of  the  judge,  as  for  refusing  to  open 
the  case  to  let  in  more  testimony,  where  the  testimo- 
ny has  been  closed,  (2  Hill  248.)  or,  to  postpone  the 
trial  (3  Hill  432)  or,  to  suspend  the  trial  until  the 
party  could  subpoena  a  witness  (4  Hill  119)  or  for 
disregarding  a  variance  on  the  trial  (3  Hill  159.) 
In  such  cases,  the  proper  course  is  by  motion  to  set 
aside  the  verdict  and  judgment. 

Exceptions  may  be  taken  by  either  party,  and 
even  the  party  succeeding  on  the  trial  may  prose- 
cute the  exceptions  taken  by  him,  for  the  purpose  of 
reversing  his  own  judgment,  as  when  he  recovers 
less  damages  than  he  is  entitled  to.  1  Coweny  240, 
253 

The  exceptions  mu.st  be  taken  at  the  trial,  and  at 
the  time  the  decision  crmplained  of  is  made.  When 
the  exception  is  to  the  charge  of  the  judge,  it  may 
be  made  at  any  time  before  the  jury  have  delivered 
their  verdict.  2  R.  S.  422,  §  73.  7  Wend.  31.  The 
exceptions  must  be  reduced  to  writing  at  the  time ; 
usually  a  brief  memorandum  is  made  on  the  minutes 


SUSPENDING    JUDGMENT.  229 

idF  the  court  and   counsel,   and   the  exception  after- 
wards drawn  out  at  length. 

Suspending  judgment  in  order  to  prepare  exceptions.] — 
Prior  to  the  Code,  if  a  party  desired  to  make  a  bill 
of  exceptions,  he  procured  an  order  staying  proceed- 
ings upon  the  verdict  for  such  length  of  lime  as  was 
required  to  prepare  the  bill  and  have  it  settled,  and 
then  obtained  an  other  order,   staying  proceedings 
until  the  argument  and  decision  of  the  bill.     In  that 
case  no  judgment  could  be  entered  until  the  decision 
upon  the  bill  of  exceptions.     Now,  however,  a  judg- 
ment must  be  entered,  before  the  exceptions  can  be 
heard.     Hence,    it  is  provided,   (Code,  §   265,)   that 
judgment,  in  conformity  to  the  verdict,  shall  be  en- 
tered by  the  clerk,  which  shall  be  final  after  the  ex- 
piration of  four  days,  unless  the   court,  or  a  judge 
thereof,  order  the  cause  to  be  reserved  for  argument 
or  further  consideration,  or  grant  a  stay  of  proceed- 
ings.    If,  therefore,  a  party  desires  to  present  his  ex- 
ceptions, taken  at  the  trial,  to  the  court  for  review, 
he  must,  m  cases   of  trial  by  a  jury,  procure  from  a 
judge  of  the  court,  an  order  suspending  the  entering 
of  judgment,  or  in  other  words  staying  the  proceed- 
ings upon  the  verdict,  until  the  bill  of  exceptions  i« 
settled  and  filed  Math  the   clerk.     As  the  bill  of  ex- 
ceptions when  settled  and  filed,  forms  a  part  of  the 
judgment  roll,  it  must  be  filed  before  the  judgment  roll 
is  made  up  by  the  clerk.     When  the  action  is  tried 
by  the  court,  a  jury  having   been  waived,  the  order 
must  b?,  suspending  the  making  up  of  the  judgment 
roll,  or  in  other  words,   suspending  the  proceedings 
upon  the  judgment,   until  the   bill  of  exceptions  is 
settled  and  filed. 

There  is  this  difference  between  a  trial  by  a  jury, 


230  SUSPENDING    JUDGMENT. 

and  a  trial  by  the  court,  without  a  jury.     In  the 
former  case,  the  proceedings  on  the  verdict  must  be 
suspended  in  order  to  make  the  bill  of  exceptions, 
and  in  the  latter,  the  proceedings  on  the  judgment  are 
suspended,  for  the  like   purpose.     In  such  case,  the 
judge  gives  his  decision  in  writing,  within  twenty 
days  after  the  court,  at  which  the  trial  took  place, 
and  upon  filing  the  decision,  judgment  is  entered, 
without  notice  to  the  adverse  party.     A  party  de- 
siring a  review  upon  the  evidence,  either  of  ques- 
tions of  law  or  fact,  may  within  tm  days  after  no- 
tice of  the  judgment,  make  a  case  or  bill  of  exceptions. 
In  all   cases  of  trial  by  a  jury,   the  party  has  four 
days,  without  an  order,  to  get  his  exceptions  settled 
and  filed.     Thes )  four  days   are   intermediate,   be- 
tween the  entering  of  judgment  and  the  making  up 
ajid  filing  the  judgment  roll,   and  if  the  exceptions 
can  be  settled  and  filed  within  that  time,  no  order 
to  suspend  the  judgment  or  judgment  roll  is  neces- 
sary. Livingston  v.  Miller,  1  Code  Rep.  117.  But  when 
more   time   is  required,   the    proceedings  must  be 
stayed,  as  has  been  stated.     The  decisions  of  a  sin- 
gle judge  upon  the  law  of  the  case,  and  any  excep- 
tions taken  to  his  decision,  on  the  trial  of  a  cause, 
can  only  be  reviewed  by  the  general  term  vpon  an 
appeal.     Hence   a  bill   of  exceptions  must  be  made 
and  settled,  and  filed  with  the  clerk ;  judgment  in 
conformity  to  (he   verdict  is  then  entered,  and  the 
judgment  roll  made  up  and  filed.     The  judgment 
roll  includes  the  bill  of  exceptions.    Cude2'$>\,  sub. .2. 
The  party  then  appeals,  which  carries  up  to  the  ge- 
neral term  the  judgment  roll,  {Code,  §  328,)  and  the 
case  is  heard  upon  (he  bill  of  exceptions,  as  incor- 
porated in  the  judgment  roll. 


BILL  OF   EXCEPTIONS.  231 

Preparing  bill  of  exceptions.] — It  is  not  necessary 
to  prepare  the  bill  of  exceptions  at  the  trial,  {Rule  1 8,) 
but  the  entering  of  judgment  having  been  suspended, 
proceed  to  prepare  the  bill  in  the  proper  form,  set- 
ting forth  the  evidence  offered  on  the  trial,  the  ob- 
jections of  counsel,  the  decision  of  the  judge  and 
the  exception  thereto :  or  the  charge  of  the  judge 
and  the  exceptions  taken,  as  the  case  may  be,  con- 
cluding with  the  verdict  of  the  jury  or  of  the  court, 
where  the  case  is  tried  without  a  jury.  Properly, 
the  bill  of  exceptions  should  contain  no  more  of  the 
evidence  than  is  necessary  to  present  the  questions 
of  law  raised  on  the  trial.  Code,  §  268,  Rule  27. 
And  it  is  the  duty  of  the  justice,  upon  the  settle- 
ment of  the  bill,  to  strike  out  of  the  same  all  the 
evidence  and  other  matters  which  are  not  necessa- 
rily inserted.  Rule  27.  4  Hill,  119.  1  How.  Pr. 
Rep.,  226.  2  Id.,  102.  When  the  exception  is  to  the 
charge  of  the  judge,  and  the  charge  embraces 
several  points  of  law,  the  exception  must,  in 
general,  specify  the  particular  points  in  respect  to 
which  the  error  is  alleged.  23  Wendell,  316.  And 
the  bill  of  exceptions  must  show  on  its  face,  that 
the  exceptions  were  taken  on  the  trial.  5  Hill,  511, 
The  bill  being  drawn,  it  must  be  folioed,  and  each 
line  of  the  folios  numbered,  and  in  the  copy  served 
upon  the  opposite  attorney,  the  folios  and  lines  must 
correspond  with  the  draft.  Rule  15.  A  copy  must 
then  be  served  within  ten  days  after  the  trial  or 
notice  of  the  judgment,  upon  the  attorney  for  the 
adverse  party.  Rule  15.  The  bill  of  exceptions  and 
copy  must  be  endorsed,  with  the  title  of  the  cause, 
putting  the  plaintiff's  name  first,  and  ''  proposed 
bill  of  exceptions."      The  bill  of  exceptions  need 


232  StTTLING    EXCEPTIONS. 

not  contain  the  pleadings,  as  they  are  included  in 
the  judgment  roll,  of  which  the  bill,  after  it  is  set- 
tled and  filed,  forms  a  part. 

Proposing  amendments,'] — If  the  party  upon  whom 
the  proposed  bill  of  exceptions  is  served  is  dissatis- 
fied with  the  manner  in  which  it  is  drawn  up,  or 
finds  it  incorrect,  or  if  anything  which  ought  to  be  in 
has  been  omitted,  he  may  propose  amendments  there- 
to. For  this  purpose,  the  amendments  are  drawn 
up,  specifying  therein  the  alterations  or  additions 
which  it  is  claimed  should  be  made.  Thus,  "  after 
word  ' one'  in  line  7,  of  folio  9,  insert  as  follow;^," 
or  "at  end  of  line  5,  in  folio  16,  add  as  follows,"  or 
"  strike  out  all  after  word  '  as'  in  line  8  of  folio  25, 
to  and  including  word  'event'  in  line  11  of  same 
folio,"  and  the  like.  The  amendments  being  pre- 
pared, shoul !  be  engrossed,  and  a  copy  served  upon 
the  attorney  of  the  party  proposing  the  bill  of  ex- 
ceptions. Unless  the  time  for  proposing  amend- 
ments has  been  enlarged,  they  must  be  served  with- 
in ten  days  from  the  time  of  receiving  the  proposed 
bill  of  exceptions  The  time  for  proposing  amend- 
ments may  be  enlarged  by  one  of  the  justices  of  the 
court,  or  by  a  county  judge.  Code  §405. 

Settling  exceptions.'] — If  the  party  who  proposed  the 
bill  of  exceptions  is  not  willing  to  adopt  the  amend- 
ments served  on  him  by  the  opposite  party,  he  must 
within  four  days  after  the  receipt  of  the  amendments, 
give  notice  to  the  other  party  to  appear  before  the 
justice  who  tried  the  cause,  within  a  convenient 
time,  to  have  the  bill  and  amendments  settled.  The 
time  for  settling  the  exceptions  and  amendments 
must  be  specified  in  the  notice  and  must  not  be  less 


SETTING    ASIDE    BILL    OF  EXCEPTIONS.  233 

than  four^  nor  more  than  twenty  days  after  the  ser- 
vice of  the  notice.  Rules  15  and  i8. 

The  parties  have  the  right  to  be  heard  by  counsel 
before  the  justice,  and  the  justice  will  amend  and 
correct  the  exceptions  according  to  the  facts.  He 
may  correct  his  charge,  even  although  the  parties 
have  agreed  upon  it,  and  he  may,  also,  insert  such 
proof  as  goes  to  waive  the  exception.   7  Cowen,  364. 

The  exceptions  having  been  settled  by  the  justice, 
have  them  engrossed  ami  folioed,  and  get  the  justice 
to  sign  and  seal  it;  and  this  he  may  be  compelled 
to  do  by  mandamus,  if  the  exceptions  state  the  facts 
truly.  2  Rev.  Stat.,  422,  §75.  6  Wend.  132. 

Se'ting  aside  settlement  of  bill  of  exceptions. — If  the  bill  of 
exceptions  is  improperly  settled,  the  party  objecting 
may  move  to  set  it  aside.  (:0  Wendell,  2.54.)  This  is 
conducted  like  other  special  motions,  and  must  be 
upon  affidavits  of  the  errors  or  defects  complained 
of.  The  court,  if  it  is  satisfied  the  bill  of  excep- 
tions is  improperly  settled,  may  correct  it  or  refer  it 
back  to  the  justice  who  tried  the  cause,  to  be  review- 
ed and  corrected.     5  Wendell,  132.  7  Id.  471. 

Filing  exceptions.] — The  bill  of  exceptions  having 
been  signed  and  sealed  by  the  justice,  must  be  filed 
with  the  clerk  of  the  county  where  the  action  was 
tried,  within  ten  days  after  it  is  sealed  by  the  judge, 
or  it  will  be  deemed  abandoned.  Ride  19. 

Upon  being  filed,  the  case  is  in  a  condition  to  have 
the  judgment  entered  and  judgment  roll  made  up 
and  filed.  The  bill  of  exceptions  is  annexed  to  and 
forms  a  part  of  the  judgment  roll.  It  will  be  per- 
ceived by  those  familiar  with  the  late  practice  of 
reviewing  cases  upon  bills  of  exceptions,  that  the 


234  CASE. 

mode  of  preparing  and  settling  the  bill  is  essential- 
ly unaltered.  It  is  only  in  the  bringing  the  bill  to 
argument,  that  the  Code  has  made  any  change. 
The  bill  having  been  settled,  must,  as  has  been 
stated,  be  filed,  and  the  judgment  is  entered  upon 
the  verdict,  or  if  the  judgment  has  already  been  en- 
tered, as  in  cases  of  trial  by  the  court,  then  the 
judgment  roll  is  made  up,  which  includes  the  bill 
of  exceptions  as  settled.  Then  the  party  appeals 
from  the  judgment,  and  the  appeal  carries  up  the 
judgment  roll.  This  is  the  manner  in  which  the 
bill  of  exceptions  is  now  heard.  The  appeal,  as  will 
hereafter  be  seen,  stays  all  proceedings  upon  the 
judgment. 

SECTION  IT. 

Case. 

Another  mode  of  reviewing  the  decisions  of  the 
judge  made  upon  the  trial,  is  by  a  case,  containing 
all  the  evidence  and  proceedings  which  transpired 
upon  the  tri  d.  All  the  questions  which  can  arise, 
upon  a  bill  of  exceptions,  may  also  be  raised  upon 
a  case.  There  are  also  questions  which  cannot  be 
raised  by  bill  of  exceptions,  which  may  be  upon  a 
case.  Thus,  a  motion  for  a  new  trial  may  be  made 
upon  a  case,  on  the  ground  that  the  verdict  is 
against  the  weight  of  evidence.  8  Cowen  406  ;  14 
John.  R.  304;  Wend.  418.  And  the  court  will  look 
into  the  whole  case,  to  see  if  there  is  sufficient  evi- 
dence to  sustain  the  verdict.  Id.  So,  when  relief 
against  the  verdict  is  sought  on  the  ground  of  the 
excessiveness  of  the  damages,  or  the  smallness  of 
the  damages,  the  proper  course  is  to  make  a  case. 


PREPARING    THE    CASE.  235 

Suspending  judgment  roll  to  make  a  case.'\ — As  in  the 
case  of  preparing  a  bill  of  exceptions,  if  the  party 
who  ('esires  to  make  a  case,  cannot  get  it  made  and 
setlled  within  the  time  limited  for  that  purpose, 
that  is,  within  ten  days  after  notice  of  the  judg- 
ment, he  must  obtain  an  order  from  the  justice  who 
tried  the  cause,  or  from  one  of  the  justices  of  the 
court,  or  from  a  county  judge,  {Code,  §  405,)  sus- 
pending the  entering  of  judgment,  in  case  the  cause 
was  tried  by  a  jury,  or  of  the  judgment  roll  in  case 
the  cause  was  tried  by  the  court  without  a  jury. 
This  becomes  necessary,  as  the  case  must  be  settled 
and  filed  with  the  clerk,  before  the  judgment  roll  is 
made  up.  It  is  then  annexed  to  and  forms  a  part 
of  the  judgment  roll.  Code,  §  281,  sub.  2.  See 
a7ite  p.  229. 

Preparing  the  easel — The  case  must  be  drawn  up, 
and  should  contain  all  the  evidence  and  proceedings 
that  transpired  on  the  trial.  It  should  also  contain 
all  the  exceptions  taken  to  the  decision  or  charge  of 
the  judge.  In  point  of  form,  the  case  should  set 
forth,  in  the  same  manner  as  a  special  verdict,  for 
which  it  is  for  some  purposes  a  substitute,  the  facts 
with  the  evidence  of  them,  as  proved  on  the  trial: 
And  where  the  question  is,  not  what  is  the  law 
arising  on  the  facts  proved  at  the  trial,  but  as  to  the 
sufficiency  or  effect  of  the  testimony  offered  to  prove 
the  facts,  then  the  evidence  itself  must  all  be  stated. 
The  case  need  not  contain  the  pleadings,  as  these 
are  a  part  of  the  judgment  roll,  to  which  the  case, 
after  settlement  and  filing,  is  annexed. 

Amendments  to  settling  and  filing  case.l — Amendments 
are  proposed  by  the  opposite  party  within  the  same 


236  TURNING  CASE  INTO  BILL  OF  EXCEPTIONS. 

time,  and  the  case  is  settled  in  the  same  manner, 
and  upon  the  like  notice,  as  in  the  case  of  bills  of 
exceptions,  and  in  like  manner,  after  it  is  settled, 
signed  and  sealed,  must  be  filed  with  the  clerk  of 
the  county  where  the  judgment  is  to  be  entered,  to 
the  end  that  it  may  be  annexed  to  the  judgment 
roll.  See  ante  p.  231    Rule  19. 

Tumi  g  case  into  special  verdict  or  bill  of  exceptio?is.\ — 
Unless  the  case  is   turned  into    a  special  verdict  or 
bill  of  exceptions,  the  defeated   party  cannot  go  to 
the  court  of  dernier  resort,  (i.  e.  to  the  Court  of  Ap- 
peals,) that  court  refusing  to  entertain  any  cause  that 
comes  up  upon  a  case  made  at  the  circuit.  Livingston 
V.  Radcliff,  3  Hoiu,  Pr.  R  ,  417.     Hence,  if  it  is  desir- 
ed to  put  the  case  in  a  situation  to  go,  if  necessary, 
to  the  court  of  dernier  resort,  the  right  must  be  re- 
served at  the   trial  of  n  aking  the  case  with  liberty 
to  either  party  to  turn  the  same   into  a  special  ver-, 
diet  or  bill  of  exceptions,  whenever  it  becomes  ne- 
cessai^y  to  do  so,  in  order  to  go  to  the  Court  of  Ap-*» 
peals.      If  the  right  is  not   reserved  at  the  trial,  it 
will    not   afterwards   be   allowed.     2   Hall,    24S ;    3 
Cotoen,S5S;    1  How   Pr.  Rep.,  42.     Nor  will  leave  be 
granted  to  turn  a  case   into  a  special  verdict  or  bill 
of  exceptions,  and  enter  it  on  the  judgment  roll,  for^ 
the  purpose  of  reviewing,  upon  appeal,  a  decision  at 
the  circuit,  sustained  at  the  general  lerra,  where  the'' 
party  instead   of  liaving  a   bill   of  exceptions  duly 
signed  and  sealed,  makes  up  a  case,  and  proceeds  to 
the  argument  thereof  22  Wendell,  561.     And  so,  al- 
though the  decision  was  duly  excepted  to.  Id.     The 
stipulation  should  be  inserted  in  the  case. 

Where  a  case  is  made,  reserving  the  right  to  turn 


SPECIAL    VERDICT.  237 

it  into  a  bill  of  exceptions,  the  poiritsof  law  decided 
by  the  co  rt  must  be  distinctly  stated  on  the  case, 
substantially  in  the  same  form  as  is  required  in  ex- 
ceptions. And  when  a  case  is  made  with  leave  to 
either  party  to  turn  it  into  a  special  verdict,  all  dis- 
puted facts  must  be  found  by  the  jury.  Rule  17  ;  22 
Wendell,  561;  4  Hill,  171;  5  Hill,  634.  As  to  man- 
ner of  turning  a  case  into  a  special  verdict  or  bill  of 
exceptions,  see  pout. 

SECTION  III. 

Special  Verdict. 

As  has  been  stated  {ante  p.  182,)  the  jury  may  in 
their  discretion,  in  actions  for  the  recovery  of  mo- 
ney only,  or  specific  real  property,  render  a  general 
or  special  verdict ;  and  in  all  other  cases  the  court 
may  direct  the  jury  to  find  a  special  verdict  in  wri- 
ting upon  all  or  any  of  the  issues.  The  special  ver- 
dict when  thus  found  by  the  jury  must  be  in  writing 
and  filed  with  the  clerk.  The  special  verdict  is  not, 
however  drawn  up  in  form  at  the  circuit,  but  a  brief 
minute  of  the  facts  found  by  the  jury  only,  is  drawn 
up  and  filed  with  the  clerk.  Upon  receiving  the 
verdict,  it  is  the  duty  of  the  clerk  to  enter  judgment 
in  conformity  to  the  verdict,  which  will  be  final  af- 
ter the  expiration  of  four  days  unless  a  judge  or  the 
court  order  the  case  to  be  reserved  for  argument  or 
further  consideration,  or  grant  a  stay  of  proceed- 
ings. 

Staying  Proceedings.] — In  order  to  draw  up  the 
special  verdict,  a  stay  of  proceedings  upon  the 
judgment,  ordinarily,  will  be  required;  for  in  this 


238  DRAWING    SPECIAL    VERDICT. 

case,  as  in  cases  of  bills  of  exceptions  or  cases 
made,  the  special  verdict  must  be  settled  and  filed 
and  annexed  to  the  judgment  roll.  Then  an  appeal 
may  be  taken  from  the  judgment  to  the  general 
term,  which  carries  up  the  judgment  roll  with  th-e 
special  verdict  annexed  to  it.  In  order,  therefore, 
to  have  the  special  verdict  drawn  up  in  form,  pro- 
cure, from  a  judge  of  the  court,  an  order  suspend- 
ing or  staying  proceedings  upon  the  judgment,  to 
enable  you  to  draw  up  the  special  verdict ;  have  it 
settled  and  filed  with  the  clerk  of  the  county 
where  the  judgment  was  entered.  Serve  a  copy  of 
this  order  on  the  opposite  attorney. 

Draiving  special  verdict. 1 — Ihe  special  verdict 
must  in  all  cases  be  drawn  up  by  the  party  in 
whose  favor  the  verdict  was  taken.  The  verdict 
must  state  the  facts  proved  at  the  trial,  and  not  the 
evidence  given  to  prove  these  facts.  4  Hill,  171. 
5  Id.,  634.  The  verdict  must  not  state  any  excep- 
tions taken  on  the  trial  to  the  competency  of  wit- 
nesses or  the  admissibility  of  evidence;  those  being 
available  only  in  bills  of  exceptions  or  case.  8 
Wend.,  480.  The  names  of  the  witnesses  sworn 
on  the  trial  should  not  appear  in  the  verdict,  nor 
should  deeds  be  set  out  in  it,  in  hcRc  verba,  but 
merely  the  substance  of  them  stated,  unless  the 
question  in  dispute  rests  upon  their  construction, 
A  negative  need  not  be  found  in  a  special  verdict, 
unless  it  be  necessary  to  show  that  some  matter 
therein  mentioned  does  not  come  within  a  particu- 
lar exception. 

After  drawing  up  the  special  verdict  in  form,  it 
must  be  engrossed,  folioed,  and  lined  in  the  same 
manner  as  cases  or  bills  of  exceptions.     A  copy 


DRAWING    SPECIAL    VERDICT.  239 

must  be  served  upon  the  opposite  attorney ;  amend- 
ments may  be  proposed  and  served,  and  notice 
given  of  settlement  before  the  judge  who  tried  the 
cause,  within  the  same  time,  and  subject  to  the 
same  regulations,  as  are  made  with  respect  to  cases 
and  bills  of  exceptions.  After  the  special  verdict 
is  settled,  signed,  and  sealed  by  the  judge,  it  must 
be  filed  with  the  clerk  of  the  county  where  the 
judgment  is  entered,  that  it  may  be  attached  to  the 
judgment  roll.  It  must  be  filed  within  ten  days 
after  it  is  sealed  by  the  judge,  or  it  will  be  deemed 
to  be  abandoned.  Rule  19. 

The  practice  of  drawing  up  a  special  verdict,  and 
annexing  it  to  the  judgment  roll,  after  it  is  settled 
and  filed,  is  the  same  as  in  cases  of  bills  of  excep- 
tions and  cases,  to  move  to  set  aside  a  verdict  or 
nonsuit.  There  is  however  no  analogy  between 
this  practice  and  the  former  practice  of  taking  a  ver- 
dict subject  to  the  opinion  of  the  court,  or  a  motion 
for  judgment  upon  a  special  verdict.  Now  a  judg- 
ment is  entered  and  an  appeal  taken  from  the  judg- 
ment. But  it  is  ilpprehended  then?  is  nothing  in  the 
Code  that  forbids  the  review  of  a  special  verdict,  in 
the  first  instance,  upon  an  appeal,  though  a  motion 
for  judgment  upon  the  verdict  must  of  course  be  first 
made  to  a  single  judge.  Hence,  when  the  jury  find 
a  special  verdict,  a  notice  for  judgment  upon  it  must 
be  made  at  a  special  term,  but  the  judge  before 
whom  the  trial  was  had  may  permit  the  judgment  to 
be  entered  upon  the  verdict,  without  a  motion,  and 
then  the  party  wishing  to  review,  may  afterwards, 
have  the  special  verdict  drawn  up,  settled  and  filed, 
and  appeal  from  the  judgment.  Thus  the  case  is 
heard  upon  the  special  verdict.    The  judge  however 


240  RESERVING    CASE    FOR    ARGUMENT. 

may  direct  the  party  to  move  for  judgment,  upon  the 
special  facts  as  found  by  the  jury,  (as  to  which  see 
post,  titk%  "of  special  motions,")  and  such  motion 
must  be  made  at  the  special  term. 

SECTION  IV. 

Reserving  Case  for  Argument  or  Further  Considera- 
tion. 

It  formerly  was  the  practice  in  some  cases  to  take 
a  general  verdict  at  the  circuit,  su' ject  to  the  opin- 
ion of  the  Supreme  Court,  upon  which  a  case  was 
made,  and  the  Supreme  Court,  pronounced  judgment 
for  or  against  the  plaintiff,  upon  the  case.  As  how- 
ever, the  case  cannot  now  be  heard  by  the  Supreme 
Couit,  at  the  general  term,  except  upon  appeal,  and 
as  appeals  can  only  be  made  from  judgments,  the 
practice  of  taking  a  general  verdict  subject  to  the 
opinion  of  the  court,  is  abrogated. 

As  a  substitute  for  such  practice,  in  actions  tried 
by  a  jury,  the  judge,  upon  receiving  the  verdict,  may 
reserve  the  case  for  argument  or  further  considera- 
tion. In  cases  tried  by  the  judge  without  a  jury, 
the  decision  is  to  be  made  within  twenty  days  after 
the  adjournment  of  the  court,  at  which  the  trial  was 
had.  Code  §  267.  This  time  was  doubtless  given  to 
enable  the  judge  fully  to  examine  the  facts  and  law 
of  the  case,  and  direct  the  proper  judgment  to  be 
entered.  But  when  the  action  is  tried  by  a  jury, 
their  verdict  upon  the  facts,  is  rendered,  and  judg- 
ment must  thereupon  be  entered,  under  the  direC' 
tion  of  the  judge,  and  in  diflTicult  or  doubtful  cases, 
no  time  is  given  to  the  judge  to  examine  the  law  to 
ascertain  what  judgment  upon  the  facts  should  be 


RESERVING    CASE    FOR    ARGUMENT.  241 

rendered,  unless  he  reserved  the  case  for  argument 
or  further  consideration. 

Hence,  in  actions  tried  by  a  jury,  the  judge  may, 
where  in  his  opinion  there  is  difficulty  in  the  case, 
or  doubt  as  to  the  judgment  to  be  entered  upon  the 
verdict,  reserve  the  case  for  argument  or  further  con- 
sideration.    Code,  §  265. 

Reserving  case  for  argument.'] — The  object  of  reserv- 
ing the  case  for  argument  or  further  consideration, 
is  to  enable  the  judge  to  pronounce  or  direct  the 
proper  judgment.  It  is  not,  therefore,  in  the  nature 
of  a  case  made  or  bill  of  exceptions,  for  no  decision 
has  as  yet  been  made,  to  which  an  exception  could 
be  taken.  No  case  or  exceptions  is  drawn  up,  un- 
less so  expressly  directed  by  the  judge,  {Rule  31)  but 
the  argument  of  counsel  is  made  upon  the  minutes 
of  the  trial  kept  by  the  coansel  and  by  the  judge 
who  tried  the  cause.  The  argument  of  a  case  thus 
reserved,  is  made  at  a  special  term,  and  is  brought 
on  like  a  motion  upon  notice  to  the  adverse  party. 
{Rule  31.)  If  a  case  is  directed  to  be  prepared,  it 
must  be  drawn  up  and  settled  in  the  same  manner 
as  cases  to  set  aside  a  verdict  or  non-suit.  But 
when  no  case  is  directed  to  be  made,  the  motion 
may  be  made  upon  the  minutes  of  the  trial,  or  upon 
affidavits,  of  what  transpired  upon  the  trial,  {a) 

(a)  In  the  absence  of  any  rule  or  decision  on  the  subject,  the  profession  may 
be  embarrassed  in  settling  upon  the  practice  under  §§  264  and  265,  of  the  Code. 
The  impressions  of  the  author,  upon  a  careful  examination  of  the  question,  are 
that  the  Legislature  intended  that  a  case  reserved  for  farther  consideration, 
was  for  the  convenience  of  tlie  judge  bufore  whom  the  trial  was  had,  and  under 
whose  direction  the  judgment  is  to  be  entered.  That  upon  the  rendering  of 
the  verdict  by  the  jury,  if  the  judge  had  doubt  as  to  the  juilgment,  to  be  entered 
upon  the  facts  as  found;  whether  upon  such  facts  it  should  be  for  the  plaintiff  or 
defendant,  he  might  reserve  it,  (that  is,  not  at  once  direct  the  judgment,)  for 
further  consideration,  and  if  he  chose  he  might  hear  counsel.  Cn  the  trial  of 
aa  issue  of  fact  by  a  jury,  the  judge  cannot  in  the  hurry  of  the  circuit,  give  to 

16 


242  RESERVING    CASE   FOR  ARGUMENT. 

The  propriety  of  this  practice,  in  difficult  or  doubt- 
ful cases,  will  readily  be  seen,  when  it  is  remem- 
bered that  the  only  way  now  provided  to  review  a 
verdict  of  a  jury  or  decision  of  a  judge,  is  by  ap- 
peal, and  that  the  appeal  is  from  the  judgment 
which  must  be  entered  before  the  appeal  is  taken ; 
and  that  in  taking  the  appeal  security  must  be  given, 
covering  the  judgment  and  the  damages  and  costs 
on  the  appeal.  This  casts  a  heavy  burthen  upon 
the  appealing  party,  and  in  authorising  the  case  to 
be  reserved  for  argument  or  futher  consideration, 
the  intention  of  the  Legislature  was,  doubtless,  to 
give  to  the  parties  the  benefit  of  a  deliberate  and 
well  considered  opinion  of  the  judge  under  whose 
direction  the  judgment  is  to  be  entered.  Formerly, 
in  reviewing  the  decisions  of  the  circuit  judge,  no 

any  question  a  deliberate  examination,  and  his  judgment  must  of  necessity  be 
his  first  impressions;  hence  when  a  jury  is  waived,  time  is  allowed  him  for 
reflection  and  examination.  But  in  a  jury  trial,  he  must  decide  off-hand,  unless 
he  reserves  the  case  for  argument  or  further  consideration.  It  is  not  reserved 
upon  the  motion  of  either  party,  as  is  supposed  by  the  judges  in  their  rules, 
(Rule  31,)  but  by  the  judge  on  his  own  motion,  for  his  ou-n  consideration.  The 
judges  have  made  a  rule,  requiring  a  case  thus  reserved  to  be  heard  at  a  special 
term,  (Rule  31,)  but  have  given  no  directions  as  to  the  manner  of  bringing  it 
up  or  presenting  the  questions.  The  author  supposes,  that  the  judges  have 
failed  to  catch  the  meaning  of  the  Legislature,  and  that  it  was  the  intention  of 
the  law  makers,  that  such  cases  should  be  heard  in  an  informal  manner,  before 
the  judge  who  held  the  circuit,  on  some  future  day,  after  he  had  discharged  the 
jury,  and  that  he  might  or  not  hear  argument  of  counsel  as  he  chose.  The 
difficulfy  now  presented  is  as  to  the  manner  of  getting  the  case  before  the  spe. 
cial  term,  unless  the  judge  directs  a  case  to  be  made.  If  no  case  is  made,  the 
profession  are  left  in  the  dark  as  to  the  mode  of  presenting  the  questions  and 
making  the  motion  at  the  special  term,  where  ordinarily  a  different  judge  will 
preside.  The  most  convenient  practice,  therefore,  will  be  to  draw  up  and 
agree  to  or  have  settled  in  the  ordinary  way  a  case,  containing  such  of  the  facts 
found  by  the  jury  as  are  necessary  to  present  the  questions.  It  will  be  seen 
that  in  those  cases,  there  is  no  disputed  question  of  fact,  but  the  verdict  is  found 
upon  admitted  facts.  In  this  respect  it  is  analogous  to  taking  a  verdict  subject 
to  the  opinion  of  the  court,  under  the  old  practice,  where  the  facts  were  never 
in  dispute  and  the  sole  question  was  as  to  the  application  of  the  law  upon  the 
facts.  Hence  it  will  not  be  difficult  to  make  a  case  for  the  purpose  of  making 
the  motion  at  the  special  term. 


liESERVING    CASE    FOR    CONSIDERATION.  243 

security  was  required,  nor  was  any  judgment  entered 
until  the  decision  of  the  court  in  banco ;  and  hence 
there  was  no  particular  consequence,  whether  the 
verdict  was  for  the  plaintiff  or  defendant,  and  gene- 
rally, a  verdict  was  directed  for  the-plaintiff,  and  the 
defendant  made  a  bill  of  exceptions;  thus  present- 
ing the  questions  involved  in  the  case,  for  the  judg- 
ment of  the  court  in  banco. 

Reserving  the  case  for  further  consideration.'] — In  like 
manner,  if  the  judge  is  in  doubt  as  to  the  judgment 
that  should  be  entered,  upon  the  facts  as  found  by 
the  jur ,-,  he  may  reserve  the  case  for  further  con- 
sideralion.  And  even  after  having  heard  the  coun- 
sel of  the  parties,  the  judge  may  still  reserve  the 
case  for  examination  and  consideration. 

Having  decided  what  judgment  should  be  render- 
ed upon  the  facts  as  found,  the  judge  will  direct 
the  clerk  to  enter  judgment  accordingly,  or  he  may 
grant  a  stay  of  proceedings,  until  the  party  desiring 
to  review  such  decision,  has  had  a  case  or  bill  of 
exceptions  made,  settled  and  filed,  as  in  other  cases. 
Upon  the  expiration  of  such  stay  of  proceedings, 
the  judgment,  as  directed  by  the  judge,  is  entered, 
the  judgment  roll  made  up  and  fi.led,  and  the  party 
may  appeal.  As  to  the  manner  of  bringing  on  the 
motion  of  a  case  reserved  for  argument  or  further 
consideration,  see  post  under  title  "  Of  Special  Mo- 
tions." 


24  1:  CASE   TO    SET    ASIDE    REPORT    OF    REFEREE^.. 

SECTION  V. 
Case  to  set  aside  Report  of  Referees. 

As  has  been  stated,  the  report  of  referees,  is  to 
stand  as  the  decision  of  the  court;  (Ante  p.  193. 
Code  §272;)  and  the  judgment  is  entered  thereon  in 
the  same  manner  as  if  the  action  had  been  tried  by 
the  court ;  and  the  decision  of  the  referees,  may  be 
excepted  to  and  reviewed  in  the  same  manner. 

Drawing  case.] — In  order  to  review  the  decison  of 
the  referees  (where  the  whole  issue  has  been  report- 
ed upon)  upon  any  question  of  law  passed  upon  by 
them  upon  the  hearing  of  the  reference,  or  to  move 
to  set  aside  their  report  upon  the  merits,  that  is,  as 
being  against  the  weight  of  evidence,  a  case  must 
be  drawn  and  served  on  the  opposite  attorney; 
amendments  proposed  and  served,  and  notice  given 
of  settlement  before  the  referees,  within  the  same 
times,  and  under  the  same  regulations  as  are  made 
with  respect  to  bills  of  exceptions  or  cases,  to  review 
the  decisions  of  a  single  judge.  Rule  24.  The  party 
desiring  to  review  the  report  of  referees,  upon  the 
evidence  appearing  on  the  trial,  either  of  the  ques- 
tions of  fact  or  of  law,  may  at  any  time  within  ten 
days  after  notice  of  the  judgment,  make  a  case  con- 
taining so  much  of  the  evidence  as  may  be  material 
to  the  question  to  be  raised.  Code  ^268,  272. 

Staling  Proceedings.] — As  in  cascsof  bills  of  excep- 
tions or  cases  to  review  the  decisions  of  a  single 
judge,  the  party  desiring  to  review  the  report  of  re- 
ferees, must  get  his  case  settled  and  filed,  so  that  it 
may  be  attached  to  the  judgment  roll,  and  then  ap- 


SETTLING    CASE.  245 

peal  from  the  judgment,  which,  as  we  have  seen,  car- 
ries up  to  the  general  term  the  judgment  roll,  includ- 
ing the  case  as  settled  and  filed.  Such  case  can  only 
be  heard  on  appeal  at  the  general  term.  Rvle  24. 
As  the  case  cannot,  in  general,  be  settled  and  filed 
within  the  ten  days  allowed  for  that  purpose,  a  stay 
of  proceedings  must  be  obtained  for  the  purpose  of 
having  the  case  settled  and  filed.  Such  stay  may 
be  granted  by  a  ju^^tice  of  the  Supreme  Court,  but 
not  by  a  county  judge.  {Code  §  401.)  A  stay  of  pro- 
ceedings for  a  longer  time  than  twenty  days,  cannot 
be  grarited  by  a  judge  out  of  court,  except  upon  pre- 
vious notice  to  the  adverse  party.  Code  §  401. 

Settling  case.] — The  case  is  settled  by  the  referees, 
in  the  same  manner  that  bills  of  exceptions  or  a  case, 
or  special  verdict  is  settled  by  a  judge.  The  parties 
in  like  manner  have  the  right  to  be  heard  by  coun- 
sel upon  the  settlement  of  the  case.  Where  more 
than  one  claim  or  demand  was  in  controversy  before 
them,  the  referees  must  add  a  statement  shewing 
what  claims  and  demands,  and  what  sums  in  parti- 
cular were  allowed  to  each  party. 

Filing  Case.] — The  case  having  been  settled  by 
the  referees,  must  be  engrossed,  and  signed  and 
sealed  by  them,  and  filed  with  the  clerk,  with 
whom  the  judgment  is  entered,  within  ten  days 
after  it  is  settled,  or  it  will  be  deemed  to  be  aban- 
doned. Rule  19.  It  is  then  attached  to  the  judg- 
ment roll.  For  mode  of  reviewing  the  report  of 
referees,  where  only  a  part  of  the  issue  is  reported 
on,  see  post,  under  title  "of  Special  Motions." 


246  DEMURRER    TO    EVIDENCE. 

SECTION  VI. 

Demurrer  to  Evidence. 

A  demurrer  to  evidence  is  similar  to  a  demurrer 
to  a  pleading.  The  party  declares  that  he  is  not 
bound  to  proceed  any  farther,  because  the  evidence 
offered  on  the  other  side  is  not  sufficient  to  main- 
tain the  issue.  The  office  of  a  demurrer  is  to  refer 
to  the  court,  the  law  arising  upon  the  facts.  1  Hilly 
471,  note  (a).  In  practice,  however,  demurrers  to 
evidence  are  seldom  resorted  to,  as  the  effect  of  a 
demurrer  may  be  obtained  by  a  special  verdict,  or 
special  case. 

If  the  opposite  party  join  in  demurrer,  the  jury 
are,  in  general,  discharged  from  giving  any  verdict, 
though  they  may  assess  the  damages  conditionally. 

The  demurrer  to  evidence  is  made  orally  by  coun- 
sel as  the  evidence  is  produced  by  the  opposite 
party.  If  the  court  overrules  the  demurrer,  or  re- 
fuses to  receive  it,  the  proper  course  is  to  except  to 
the  decision,  and  afterwards  make  a  bill  of  excep- 
tions. If  however  the  demurrer  is  decided  to  be 
well  taken,  the  jury  will  be  at  once  discharged. 

Demurrer,  ho2v  drawn  up-l — The  demurrer  to  evi- 
dence is  drawn  up  and  served  upon  the  opposite 
attorney,  amendments  proposed,  and  served,  and 
notice  given  of  settlement  within  the  same  time  and 
under  the  same  regulations,  as  are  made  with  re- 
spect to  bills  of  exceptions  or  cases  to  review  the 
decisions  of  a  single  judge. 

If  a  stay  of  proceedings  upon  the  judgment  is  ne- 
nessary  to   draw  up  and  have  the  demurrer  settled 


FILING   DEMURRER.  247 

and  filed,  it  must  be  obtained  from  a  judge  of  the 
court. 

Filing  demurrer.'] — The  demurrer  having  been  set- 
tled, signed  and  sealed  by  the  judge,  it  must  be 
filed  with  the  clerk,  with  whom  the  judgment  is 
entered,  and  attached  to  the  judgment  roll,  within 
the  same  time  that  is  required  in  respect  to  cases. 
Rule  19. 


CHAPTEH  VH. 

OF  SUBMITTING  A  CONTROVERSY  WITHOUT  ACTION. 

The  Code  has  provided  a  cheap  and  expeditious 
mode  of  determining  a  controversy  concerning  the 
law  of  a  case,  between  parties,  without  resorting  to 
an  action.  The  controversy  however,  must  be  real, 
and  the  facts  upon  which  the  questions  of  differ- 
ence arise  must  be  conceded  and  without  dispute. 
The  courts  will  not  determine  a  disputed  or  con- 
flicting question  of  facts ;  but  will  only  adjudge  the 
law,  upon  the  facts  as  agreed  on  between  the  par- 
ties. 

This  mode  of  determining  a  question  of  law, 
where  the  facts  are  conceded,  will  be  found  both 
convenient  and  cheap  in  a  variety  of  cases.  Thus, 
in  cases  of  application  to  the  court  by  executors  for 
the  construction  of  a  will  or  other  instrument,  which 
heretofore  could  only  be  obtained  by  a  bill  in  the 
Court  of  Chancery ;  or  by  trustees,  for  the  construc- 
tion of  a  power  or  trust;  and  in  all  cases  where  the 
facts  are  agreed  upon,  and  the  dispute  is  in  respect 
to  the  law,  the  parties  may  avoid  the  expense  and 
delay  of  an  action,  and  obtain  the  same  result,  by 
the  expeditious  and  economical  method  pointed  out 
in  the  Code.  Code,^  132. 

Drawing  Case.] — In  order  to  present  the  questions 
of  law  for  the  adjudication  of  the  court,  a  case  must 


SUBMISSION.  249 

be  drawn  up,  containing  the  facts  upon  which  the 
controversy  depends,  to  which  mast  be  annexed  the 
affidavit  of  the  parties,  that  the  CLntroversy  is  real, 
and  that  the  proceeding  is  conducted  in  good  faith. 

Submission.] — There  must  be  annexed  to  tire  case 
as  prepared,  a  written  submission  of  the  questions 
in  dispute  to  the  court  for  its  adjudication.  This 
submission  must  be  subscribed  by  both  parties. 

No  attorneys  are  necessary,  as  the  case  is  submit- 
ted by  the  parties  in  person.  The  argument  of  it, 
however,  will  ordinarily  be  by  counsel. 

The  case  and  submission  having  been  drawn  up 
and  signed,  it  must  be  printed,  and  furnished  by  the 
plaintiff,  in  like  manner  as  upon  an  appeal  to  the 
Supreme  Court.  Rule  32.     See  post. 

Points  in  like  manner  must  be  prepared  and  print- 
ed. The  cause  is  put  upon  the  calendar,  and  the 
argnment  moved  and  conducted  in  the  same 
manner  as  upon  appeals  from  judgments. 

If  the  party  whose  duty  it  is  to  furnish  the  printed 
case,  fail  to  do  so,  at  the  proper  time,  that  is,  at  or 
before  noticing  the  case  for  argument,  the  other 
party  may  in  like  manner  as  in  appeal  cases,  move 
to  strike  the  cause  from  the  calendar  and  for  judg- 
ment in  his  favor. 

Either  party  may  notice  the  cause  for  argument, 
by  a  notice  of  at  least  eight  days. 

The  case  is  heard  at  the  general  term  of  the  court, 
and  cannot  be  heard  at  the  special  term.  Rule  32, 
33. 

Judgment.'] — The  judgment  upon  the  decision  of 
the  case  is  entered  in  the  judgment  book,  in  like 
manner  as  in  other  cases,  but  without  costs  for  any 


250  JUDGMENT. 

proceeding  prior  to  notice  of  trial.  But  the  costs 
subsequent  to  the  notice  of  trial  are  to  be  inserted 
for  the  Jparty  entitled  thereto,  in  the  entry  of 
judgment  the  same  as  in  actions.  The  case,  the 
submission,  and  a  copy  of  the  judgment,  constitute 
the  judgment  roll. 

The  judgment  may  be  enforced  in  the  same  man- 
ner, as  if  it  had  been  rendered  in  an  action,  and 
may  in  like  manner  be  appealed  from  to  the  Court 
of  Appeals. 

For  a  more  full  detail  of  the  practice  after  the 
case  and  submission  is  prepared,  see  jpost,  under 
title  "  of  appeals  to  the  general  term  from  judgments 
entered  by  the  direction  of  a  single  judge." 


CHAPTER  Vlll. 

OF  APPEALS  TO  THE  SUPREME  COURT,  FROM  AN 

INFERIOR  COURT. 

It  is  provided  by  the  Code  (§  18)  that  at  least  four 
general  terms  of  the  Supreme  Court  shall  be  held 
annually  in  each  judicial  district,  and  as  many 
more  as  the  judges  may  from  time  to  time  appoint. 
These  terms  are  held  by  at  least  three  of  the  judges, 
and  it  requires  a  concurrence  of  a  majority  of  the 
judges  holding  the  court,  to  pronounce  a  judgment. 
§19. 

The  Supreme  Court,  when  sitting  in  general  term, 
exercises  appellate  powers  only,  in  reviewing  the 
judgments  and  decisions  of  inferior  courts,  or  of 
judgments  or  orders  rendered  or  made  under  the 
direction  of  a  single  judge  of  the  same  court,  it 
also,  has  appellate  power  to  restrain  inferior  courts 
within  the  limits  of  their  jurisdiction,  by  writs  of 
prohibition  and  mandamus;  and  to  review  the  pro- 
ceedings of  certain  courts  and  officers,  invested  with 
special  jurisdiction,  by  certiorari.  Graham  on  Jurisd.j 
232. 

At  the  general  term,  therefore,  this  court  will  only 
exercise  its  revisory  powers  in  correcting  the  errors, 
abuses  and  mistakes  of  inferior  and  subordinate 
tribunals,  and  of  single  judges  of  the  same  court. 

The  manner  of  bringing  a  decision  or  judgment 


552      APPEALS  FROM  JlDGMENTS  OF  INFERIOR  COURTS. 

from  an  inferior  court  into  the  Supreme  court,  for 
review,  will  now  be  pointed  out. 

It  is  provided  that  an  appeal  may  be  taken  to  the 
Supreme  Court  from  a  judgment  rendered  by  a 
county,  or  by  a  mayor's  court  or  recorder's  court  of 
a  cily.  Code^  §  344. 

The  appeal  in  such  cases,  is  a  substitute  for  the 
writ  of  error,  which  brought  up  the  record  from  the 
common  pleas  or  mayor's  court,  and  was  reviewed 
in  the  Supreme  Court. 

SECTION  I. 

Appeal  when  and  by  whom    Taken,  and  from    what 

Judgment. 

When  taken,] — An  appeal  from  a  judgment  of  a 
€oimty  court,  or  mayor's  or  recorder's  court  of  a  cily, 
may  be  taken  at  any  time  within  two  years  after 
the  judgment  appealed  from  was  rendered  ;  and  the 
two  years  will  be  taken  from  the  time  the  judgment 
was  actually  entered,  and  not  from  the  time  the 
decision  was  made.  Code,  §§  33  I,  344. 

Bi/  whom. — An  appeal  from  a  judgment  may  be 
taken  by  the  party  against  whom  the  judgment  was 
rendered,  and  in  some  cases  a  party  may  appeal 
from  a  judgment  in  his  own  favor.  It  is  presumed 
that  the  provisions  of  law,  (2  Rlv.  Stat.,  592,  §2) 
in  respect  to  the  parties  by  whom  and  against  whom 
writs  of  er  or  may  be  brought,  the  joinder  of  parties, 
and  the  proceedings  on  the  death  or  marriage  of 
parties,  will  all  ap[)Iy  to  appeals,  brought  under  the 
Code,  as  to  which  see  post  under  head  of  "  Appeuh 
to  the  CiMrt  of  Appeals'^ 


APPEALS  FROM  JUDGMENTS  OF  INFERIOR  COURTS.      253 

From  what  judgments.']— Ihe  only  judgments  of  in- 
ferior courts  that  can  be  br  )ught  into  this  court  for 
review  upon  appeal,  a  e  final  judgments.  No  inter- 
locutory proceeding  in  a  cause,  or  decision  which 
only  partially  determines  the  rights  of  the  parties  or 
the  subject  of  the  controversy,  is  the  subject  of  ap- 
peal. 

Cases  arising  in  a  justice's  court.'] — In  order  to  appeal 
from  the  judgment  of  a  county  court  in  a  case  ari- 
sing in  a  justice's  court,  it  is  necessary  to  procure  a 
certificate,  that  it  is  a  proper  case  to  be  presented  to 
the  Supreme  Court.  For  this  purpose,  the  party  de- 
siring to  bring  the  appeal  must  within  thirty  days 
after  he  has  received  notice  of  the  judgment,  pre- 
sent to  a  judge  of  this  court  (i.  e.  Supreme  Court)  the 
return  of  the  justice,  or  a  copv  thereof,  with  the  de- 
cision of  the  county  court,  and  obtain  from  such 
judge  a  certificate  that  he  has  examined  the  case, 
and  in  his  opinion  an  appeal  to  the  Supreme  Court 
should  be  allowed. 

In  order  to  restrict  the  time  within  which  this 
certificate  must  be  obtained,  a  written  notice  of  the 
judgment  having  been  entered,  must  be  served  on 
the  party  against  whom  it  is  entered.  A  verbal  or 
constructive  notice  is  not  sufficient,  it  being  pro- 
vided that  all  notices  shall  be  in  writing.  Code^ 
§  408.  And  even,  if  the  party  was  present  when 
the  judgment  was  entered,  it  will  not  be  deemed  a 
notice  within  the  meaning  of  the  law;  and  so  it 
was  decided  by  Harris,  /.,  in  a  case  not  reported. 
But  if  the  certificate  of  a  judge  is  not  procured 
within  such  time,  after  notice  of  the  judgment  has 
been  duly  given,  the  right  to  appeal  will  be  lost, 
the  court  having  no  power  to  extend  the  time  for 


254        PROCEEDINGS  TO  PERFECT  APPEAL. 

granting  the  certiticate.  The  act  of  1836  (Sess. 
Laws  1836,  p.  794,  §2)  required,  in  cases  of  writs 
of  error  brought  upon  a  judgment  of  a  court  of 
common  pleas  in  a  cause  arising  in  a  justice's 
court,  that  a  certificate  should  be  procured,  within 
thirty  days  from  the  time  of  filing  the  record,  from 
the  judge  who  presided  at  the  trial,  that  the  cause 
was  a  proper  one  to  be  carried  to  the  Supreme 
Court.  Under  this  statute  it  was  decided  (22  Wen- 
dell, 627)  that  the  court  could  grant  no  relief  what- 
ever, if  the  certificate  was  not  procured  within  the 
thirty  days.  The  provision  in  the  Code  in  respect 
to  procuring  a  certificate  of  a  judge  is  substantially 
the  same  as  the  act  of  1836,  except  that  the  party 
must  have  notice  of  the  judgment,  in  order  to  limit 
the  time. 

Parties,  how  called.] — The  party  appealing  is  known 
as  the  appellant,  and  the  adverse  party  as  the  re- 
spondent, but  the  plaintift^'s  name  must  always  be 
placed  first  in  the  title,  thus :  A.  B.,  appellant  or 
respondent,  against  C.  D.,  appellant  or  respondent. 

SECTION   11. 

Of  the  Proceedings  to  Perfect  the  Appeal. 

Notice  of  appeal] — A  party  wishing  to  appeal,  must 
prepare  a  notice,  stating  that  he  appeals  from  the 
judgment,  or  from  some  specified  part  thereof  The 
judgment  appealed  from,  must  be  described  with 
accuracy  and  certainty;  and  if  the  whole  judgment 
is  not  appealed  from,  but  the  party  intends  to  review 
only  a  part  of  it,  he  must  specify  accurately  the  part 
or  portion  of  the  judgment  appealed  from.  For  form 
of  notice,  see  Appendix. 


UNDERTAKING.  255 

Service.] — The  notice  of  appeal  must  be  served  on 
the  adverse  party,  or  it  may  be  served  upon  his  at- 
torney, if  the  judgment  appealed  from,  was  entered 
by  an  attorney.  It  must  also  be  served  on  the  clerk 
with  whom  the  judgment  was  entered.  This  notice 
may  be  served  like  other  notices  in  actions:  as  to 
which,  see  post.  It  need  not  be  a  personal 
service,  but  may  he  by  mail,  or  otherwise,  as  in  the 
case  of  other  notices. 

The  undertaking.] — To  render  the  appeal  effectual 
for  anj''  purpose,  a  written  undertaking  must  be  ex- 
ecuted on  the  part  of  the  appellant,  by  at  least  two 
sureties,  to  the  effect  that  the  appellant  will  pay  all 
costs  and  damages  which  may  be  awarded  against 
him  on  the  appeal,  not  exceeding  two  hundred  and 
fifty  dollars.  Or,  the  appellant  may  deposit  with  the 
clerk  with  whom  the  judgment  appealed  from  was 
entered,  the  sum  of  two  hundred  and  fifty  dollars, 
to  abide  the  event  of  the  appeal. 

This  undertaking  or  deposit,  or  both,  may  be 
waived  by  the  written  consent  on  the  part  of  the 
respondent.  Code,  §  334. 

The  undertaking  above  mentioned  will  be  suffi- 
cient to  perfect  the  appeal  in  all  cases  where  a 
stay  of  execution  upon  the  judgment  is  not  desired; 
or  where  the  judgment  appealed  from  does  not  di- 
rect the  payment  of  money,  or  some  act  or  thing  to 
be  done  by  the  party  against  whom  the  judgment 
is  made. 

If,  however,  the  appeal  be  from  a  judgment  direct- 
ing the  payment  of  money,  it  will  not  stay  the  exe- 
cution of  the  judgment,  unless  in  addition  to  the  un- 
dertaking to  pay    costs,  {see  Langli/  and   Langly,   v. 


256  UNDERTAKING. 

Warner,  1  Com  Rep.  60n,)  a  written  undertaking  be 
executed  on  the  part  of  the  appellant,  by  at  least  two 
sureties,  to  the  effect  that  if  the  judgment  appealed 
from,  or  any  part  thereof  be  affirmed,  the  appellant, 
will  pay  the  amount,  directed  to  be  paid  by  the  judg- 
ment; or  the  part  of  such  amount,  as  to  which  the 
judgment  shall  be  affirmed,  if  it  be  affirmed  only  in 
part,  and  all  damages  which  shall  be  awarded 
against  the  appellant,  upon   the  appeal.  Code  §  335. 

Both  the  undertakings  may  be  embraced  in  one, 
and  it  is  not  necessary  that  they  should  be  separate. 

If  the  judgment  appealed  from  direct  the  assign- 
ment or  delivery  of  documents  or  personal  property, 
the  execution  of  the  judgment  will  not  be  stayed  by 
the  appeal,  unless  (in  addition  to  giving  the  under- 
taking to  pay  costs,)  the  things  required  to  be  as- 
signed or  delivered,  be  brought  into  court,  or  placed 
in  the  custody  of  such  officer  or  receiver,  as  the 
court  shall  direct,  or  unless  an  undertaking  be  en- 
tered into,  on  the  part  of  the  appellant,  by  at  least 
two  sureties,  and  in  such  amount  as  the  court  or 
judge  thereof  or  county  judge  shall  direct,  to  the 
effect  that  the  appellant  will  obey  the  order  of  the 
appellate  court,  upon  the  appeal.     Code  §  336. 

If  the  judgment  appealed  from  direct  the  execu- 
tion of  a  conveyance  or  other  instrument,  the  exe- 
cution of  the  judgment  will  not  be  stayed  by  the 
appeal  until  the  instrument  shall  have  been  ex- 
ecuted, and  deposited  with  the  clerk,  with  whom 
the  judgment  is  entered,  to  abide  the  judgment  of 
the  appellate  court.  Code,  §  337. 

If  the  judgment  appealed  from  direct  the  sale  or 
delivery  of  possession  of  personal  property,  the  ex- 
ecution of  the  judgment  will  not  be  stayed,  unless 


UNDERTAKING. 


257 


a  written  undertaking  be  executed  on  the  part  of 
the  appellant,  with  two  sureties,  to  the  effect  that 
during  the  possession  of  such  property  by  the  appel 
lant,  he  will  not  commit,  or  suiTer  to  be  committed, 
any  waste  thereon,  and  that  if  the  judgment  be 
affirmed,  he  will  pay  the  value  of  the  use  and  oc- 
cupation of  the  property  from  the  time  of  the  ap- 
peal until  ihe  delivery  of  possession  thereof,  pursu- 
ant to  the  judgment,  not  exceeding  a  sum  to  be 
fixed  by  a  judge  of  the  court,  by  which  the  judg- 
ment was  rendered,  and  which  must  be  specified  in 
the  undertaking. 

When  the  judgment  is  for  the  sale  of  mortgaged 
premises,  and  the  payment  of  a  deficiency  arising 
upon  the  sale,  the  undertakin  j;;  must  also  provide  for 
the  payment  of  such  deficiency.  Code,  338. 

In  all  cases  of  appeal  there  must  be  an  underta- 
king to  pay  costs,  in  addition  to  any  or  either  of  the 
other  undertakings  as  above  mentior.ed.  Langieij  and 
Langley  vs.  Warner,  1  Com.  Rep.  606.  But  all  un- 
dertakings required  to  make  the  appeal  effectual,  or 
to  suspend  the  execution  of  the  judgment  appealed 
from,  may  be  embraced  in  one  instrument,  and  they 
need  not  be  separate.  They  may,  however,  be  in 
separate  instruments,  at  the  option  of  the  appellant. 
Code,  §  340. 

It  is  not  necessary  for  the  appellant  to  execute 
the  undertaking.  It  will  be  sufficient,  if  it  is 
executed  by  two  sureties,  without  the  appellant. 

The  undertaking  need  not  be  approved.  It  is 
required  by  rule  {Rule  76)  that  the  undertaking  shall 
be  duly  proved  or  acknowledged,  in  the  same  man- 
ner as  prescribed  by  law  for  the  proof  or  acknow- 

17 


258  UiVDERTAKING. 

ledgment  of  deeds  of  real  property,  before  the  same 
shall  be  received  or  filed. 

la  cases  of  appeal,  not  provided  for  in  sections 
335,  336,  337,  338,  and  339  of  the  Code,  the  per- 
fecting an  appeal,  by  giving  an  undertaking,  on  the 
part  of  the  appellant,  executed  by  at  least  two 
sureties,  to  the  effect  that  the  appellant  will  pay 
all  costs  and  damages  which  may  be  awarded 
against  him  on  the  appeal,  not  exceeding  two  hun- 
dred and  fifty  dollars;  or  by  depositing  that  sum 
with  the  clerk  with  v/hom  the  judgment  was  en- 
tered, to  abide  the  event  of  the  appeal,  will  stay  all 
proceedings  in  the  court  below,,  upon  the  judgment 
appealed  from ;  except  that  where  it  directs  the 
sale  of  perishable  property,  the  court  below  may 
order  the  property  to  be  sold,  and  the  proceeds 
thereof  to  be  deposited  or  invested,  to  abide  the 
judgment  of  the  appellate  court.  Code,  §  342. 

Where  a  sum,  to  be  inserted  in  the  undertaking, 
is  to  be  fixed  by  a  judge,  as  in  the  case  of  an  appeal 
from  a  judgment,  directing  the  sale  or  delivery  of 
possession  of  real  property,  the  judge  may  ascertain 
the  same  by  a  reference,  or  by  an  affidavit,  or  other- 
wise. 

Upon  the  appeal  being  perfected,  that  is,  upon 
the  service  of  the  notice  of  appeal  and  the  execu- 
tion of  the  appropriate  undertaking,  as  provided  by 
law,  it  stays  all  further  proceedings  in  the  court 
below,  upon  the  judgment  appealed  from,  or  upon 
the  matter  embraced  therein;  but  the  court  below 
may  proceed  rrpon  any  other  matter  included  in  the 
action,  and  not  affected  by  the  judgment  appealed 
from.  C(de,  §  339. 


AFFIDAVIT   ANNEXED   TO   UNDERTAKING.  259 


a- 

o 


JIffidavit  annexed  to  nndertaki7ig.]— The  undertakin 
must  be  accompanied  by  an  affidavit  of  the  sureties 
that  they  are  each  worth  double  the  amount  speci- 
fied therein,  otherwise  the  undertaking  will  be  of  no 
effect,  {Code  §  341,)  and  the  appeal  will  not  stay  the 
proceedings  in  the  court  below,  upon  the  judgment 
appealed.  And  it  would  seem  that  the  sureties  must 
be  householders  or  freeholders  in  this  state,  as  they 
are  required  to  justify  upon  exception  in  the  same 
manner  as  bail  taken  upon  the  arrest  of  a  defendant- 
It  is  unnecessary,  however,  to  state  in  the  affidavit, 
that  the  sureties  are  householders  or  freeholders. 
But  it  will  be  sufficient  if  they  swear  that  they  are 
each  worth  double  the  amount  specified  in  the  un- 
dertaking. 

Serving  copy  undertaking^ — At  the  time  of  serving 
the  notice  of  appeal,  a  copy  of  the  undertaking,  in- 
cluding the  names  and  residence  of  the  sureties, 
must  also  be  served  on  the  adverse  party,  unless  the 
appellant  makes  a  deposit  of  money  instead  of  exe- 
cuting an  undertaking  for  the  payment  of  costs. 
The  copy  undertaking  is  served  in  the  same  manner 
as  notice  and  other  papers  in  the  action,  and  may 
be  upon  the  adverse  party  or  upon  his  attorney,  if 
he  have  one. 

Excepting  to  sureties.'] — Within  fen  days  after  re- 
ceiving notice  of  the  appeal,  and  a  copy  of  the  un- 
dertaking, the  respondent,  if  he  is  not  satisfied  with 
the  sufficiency  of  the  sureties,  may  except  thereto. 
For  this  purpose  he  must  serve  upon  the  appellant's 
attorney,  a  written  notice  that  he  excepts  to  the  suf- 
ficiency of  the  sureties.  If  the  respondent  omits  to 
give  this  notice,  until  after  ten  days  from  the  receipt 


260  SURETIES    JOSTIFYING. 

of  the  copy  undertaking  and  notice  of  appeal,  he 
will  waive  his  right  to  require  the  sureties  to  jus- 
tify. 

Svreties  justifying.] — The  appellant's  attorney,  hav- 
ing received  notice  of  exception  to  the  sufficiency 
of  the  sureties,  he  must  see  that  they  justify,  and  if 
he  fail  to  do  so,  and  other  sureties  are  not  put  in, 
the  appeal  will  be  regarded  as  if  no  undertaking  had 
been  given.  Code,§o41.  Within  ten  days  next  sue- 
ceeding  the  receipt  of  notice  of  exception,  the  sure- 
ties must  justify  before  a  judge  of  the  court  below, 
or  before  a  county  judge.  For  this  purpose,  a  notice 
must  be  served  on  the  respondent's  attorney,  at  least 
five  days  before  the  time  specified  therein  when  the 
sureties  will  justify,  stating  the  time,  place,  and 
name  of  the  judge  before  whom  the  sureties  will 
justify. 

Sureties,  in  an  undertaking  given  upon  an  appeal, 
cannot  justify  before  a  justice  of  the  peace,  as  in 
case  of  bail  given  upon  the  arrest  of  a  defendant. 
Code,  §  341. 

Other  sureties.] — Instead  of  causing  the  sureties  al- 
ready given  to  justify,  the  appellant  may,  within  the 
same  time,  (i.  e.  ten  days  after  notice  of  the  excep- 
tion,) give  a  written  notice  to  the  respondent's  at- 
torney, that  other  sureties  (whose  places  of  residence 
and  occupation  must  be  stated  in  the  notice)  will  in 
like  manner  justify  before  the  judge.  The  notice 
must  specify  the  time,  place,  and  name  of  the  judge, 
before  whom  the  new  sureties  will  justify,  and  must 
be  served  at  least  five  days  before  the  time  men- 
tioned in  the  notice. 

In  case  the  new  sureties  justify,  a  new  under- 


MANJ^R   OF    JUSTIFYING.  261 

takinsT  must  be  executed,  in  the  form  nnd  to  the 
effect  prescribed  by  law  for  the  first  undertaking; 
and  the  new  sureties  must  justify  in  the  same  man- 
ner as  is  required  in  the  case  of  the  first  sureties. 

Manner  of  just  if 7jing.]— At  the  time  and  place  spe- 
cified in  the  notice,  each  of  the  sureties  must  at- 
tend before  the  judge,  who  must  administer  to  the 
sureties  an  oath,  that  they  will  truly  answer  all 
questions  that  may  be  put  to  them  touching  their 
property  and  sufficiency  as  sureties.  The  respond- 
ent's attorney  may  tlien  examine  the  sureties  in  such 
manner  as  the  judge  may  think  proper.  If  required 
by  the  respondent's  attorne)'',  the  examination  of 
the  sureties  must  be  reduced  to  writing  by  the  judge, 
and  subscribed  by  the  sureties. 

If  the  judge  finds  the  sureties  sufficient,  he  must 
annex  their  examination  (if  the  same  shall  have 
been  reduced  to  writing)  to  the  undertaking,  and 
endorse  upon  the  undertaking  an  allowance  of  the 
sufficiency  of  the  sureties. 

The  qualifications  of  sureties  and  the  manner  of 
justifying,  is  the  same  as  in  case  of  bail  taken  on 
arrest.     Code,  §  341. 

Filing  U7idertaking.] — The  undertaking  must  be  filed 
with  the  clerk,  with  whom  the  judgment  appealed 
from  was  entered.     Code,  §  343. 

Deposile.] — If  no  stay  of  execution  is  required,  the 
appellant  instead  of  giving  the  undertaking,  may 
deposite  with  the  clerk  with  whom  the  judgment 
appealed  from  is  entered,  the  sum  of  two  hundred 
and  fifty  dollars,  to  abide  the  event  of  the  appeal. 
{Code,  §334.)  In  this  case  notice  of  the  deposite 
must  be  given  to  the  opposite  party.     Code,  §  340. 


2C2  TRANSMITTING    JUDGMENT    APPEALED    FROM. 


SECTION  III. 

Of  Transmitting  Judgment  Appealed  from  to  the 

Supreme  Court. 

How  procured.] — Having  perfected  the  appeal  by 
the  service  of  the  notice  of  appeal  and  a  copy  of  the 
undertaking,  the  judgment  appealed  from  must  he 
sent  into  the  Supreme  Court.  The  appellant  must 
pro?ure  from  the  clerk  with  whom  the  judgment 
appealed  from  is  entered,  a  certified  copy  of  the 
notice  of  appeal  and  judgment  roll.  The  clerk's 
fees  for  making  the  copy  and  certifying  it,  must  be 
paid  by  the  appellant,  and  the  clerk  is  not  bound  to 
make  the  copy  without  the  payment  of  his  fees. 
It  is  the  duty  of  the  clerk  to  transmit  the  copy,  no- 
tice and  judment  roll,  into  the  Supreme  Court ;  but 
in  practice,  it  is  usual  for  the  attorney  of  the  appel- 
lant to  receive  it  from  the  clerk,  when  duly  certified, 
and  attend  to  filing  it  in  the  proper  office.  The  re- 
turn of  the  clerk,  (which  is  the  certified  copy  of  the 
notice  and  judgment  roll,)  must  be  made  and  filed 
within  a  reasonable  time  after  the  appeal  is  per- 
fected, or  a  motion  may  be  made  to  dismiss   the 

appeal. 

When  transmitted.] — The  appellant  must  procure  the 
proper  return  to  be  made  and  filed  with  the  clerk  of 
the  Supreme  Court,  within  a  reasonable  time  after 
the  appeal  is  perfected.  If  the  appellant  fail  to  do 
so,  he  will  be  deemed  to  have  abandoned  the  ap- 
peal; and  the  respondent  may,  upon  an  affidavit 
showing  when  the  appeal  was  perfected,  and  a  cer- 
tificate of  the  clerk  of  the  Supreme  Court  that  no 


TRANSMITTING    JUDGMENT    APPEALED    FROM.  203 

return  has  been  filed,  move  at  a  special  term,  on 
notice  to  the  adverse  party,  for  an  order  dismissing 
the  appeal,  for  want  of  prosecution. 

This  order  is  entered  with  the  clerk  of  the  Su- 
preme Court. 

The  time  for  making  the  return  may  be  enlarged 
by  the  court  on  the  motion,  upon  sufficient  cause 
shown. 

With  respect  to  the  manner  of  making  the  return, 
it  mny  be  observed,  that  it  is  more  a  matter  of  form 
than  substance,  except  when  the  appeal  is  from  a 
judgment  of  a  mayor's  or  recorder's  court  of  a  city. 
As  now  constituted,  the  clerks  of  the  several  coun- 
ties are  ex  officio  clerks  of  the  Supreme  Court,  and 
of  the  county  courts  of  their  respective  counties. 
Hence,  in  appeals  from  judgments  of  county  courts, 
the  return  is  certifid  by  the  clerk,  as  clerks  of  the 
county  court,  and  filed  by  the  same  person,  as  clerk 
of  the  Suprerne  Court.  In  reality,  it  never  goes  out 
of  his  office,  but  is  simply  sent  from  one  court  into 
another,  of  both  which  courts  the  same  officer  is 
clerk.  In  appeals,  however,  from  mayors'  and  re- 
corders' courts  of  cities,  there  is  an  actual  transmis- 
sion of  the  return  from  one  court  to  the  other,  there 
being  distinct  and  diffi^rent  clerks  and  officers  for 
each. 

And  thus,  if  an  appeal  be  taken  from  a  judo-- 
ment  of  the  county  court  of  Oneida  county  to  the 
Supreme  Court,  the  return  of  the  clerk  is  certified 
by  him  as  clerk  of  the  county  court,  and  immedi- 
ately filed  by  him  as  clerk  of  the  Supreme  Court ; 
the  papers  and  proceedings  of  the  two  courts  being 
kept  in  the  same  office.    Where  the  appeal,  however, 


264  PREPARING    THE    APPEAL    FOR    ARGUMENT. 

is  from  a  judgment  of  a  mayor's  or  recorder's  court 
of  a  city,  the  return  is  transmitted  by  tlie  clerk  of 
such  court  to  the  clerk  of  the  county,  and  by  him 
filed  in  the  Supreme  Court. 

The  return  must  be  filed  in  the  oflice  of  the  clerk 
of  the  county  where  the  judgment  appealed  from 
was  rendered. 

Obtaining  further  return  ] — Tf  the  return  made  by 
the  clerk  of  the  court  below,  is  defective  or  errone- 
ous, either  party  may  apply  to  one  of  the  judges  of  the 
Supreme  Court,  for  an  order  requiring  the  clerk  to 
make  a  further  return  without  delay.  The  applica- 
tion for  this  order  must  be  founded  upon  an  affida- 
vit specifying  particularly  the  defects  or  errors  in 
the  return  already  made,  and  is  made  ex  parte,  no 
notice  to  the  adverse  party  being  required.  The 
order  should  also  specify  particularly  the  defects  or 
errors  in  the  first  return,  and  must  be  served  upon 
the  clerk. 

SECTION  IV. 

Of  Preparing  the  Appeal  for  Argument. 

Having  procured  the  return  of  the  clerk  to  be 
made  and  filed,  the  next  proceeding  is  to  prepare 
the  appeal  for  argument. 

Preparing  papers.] — The  appeal  is  to  be  heard  upon 
the  return  of  the  clerk  of  the  court  below;  a  case 
must  therefore  be  prepared,  consisting  of  the  return 
of  the  clerk,  i.  e.  the  notice  of  the  appeal  and  judg- 
ment roll,  and  the  reasons  of  the  court  below  for  its 
judgment,  if  any  shall  have  been  given  in  writing. 
The  case  must  also  contain  a  statement  of  the  time 


PRINTING    APPEAL  AND  POINTS.  265 

of  the  commencement  of  the  suit,  and  of  the  service 
of  the  respective  pleadings,  the  names  of  the  origi- 
nal parties  in  full,  the  change  of  parties,  if  any  has 
taken  place,  pending  the  eoit,  and  a  very  brief  his- 
tory of  the  proceedings  in  the  cause ;  and  also  an 
abstract  of  the  pleadings  not  exceeding  one-sixth  of 
the  number  of  folios  contained  in  the  original  plead- 
ings. Rule  32.  The  points  intended  to  be  relied  on, 
in  argument,  with  reference  to  the  authorities  in 
snpport  of  the  same  must  also  be  prepared.  In 
cases  where  it  is  necessary  for  the  court  to  go 
into  an  extended  examination  of  evidence,  each 
party  nmst  briefly  state  upon  his  printed  points,  the 
leadino^  facts  which  he  deems  established,  with  a 
reference  to  the  folios  where  the  evidence  of  such 
facts  may  be  fonnd.  Rule  34.  It  is  the  duty  of  the 
appellant  in  all  cases  to  prepare  the  papers  upon 
which  the  appeal  is  to  be  heard,  and  furnish  the 
necessary  copies  tliereof,  and  the  respondent  has  no 
right  to  make  them  up.  Rule  32. 

Printing  appeal  and  points.'] — The  case  and  points, 
and  all  other  papers  furnished  the  court,  and  the 
opposite  party  in  calendar  causes,  must  be  printed 
on  white  v/riting  paper,  with  a  margin  on  the  outer 
edge  of  the  leaf  not  less  than  one  and  a  half  inch 
wide.  The  printed  page,  exclusive  of  any  marginal 
note  or  reference,  must  bo  seven  inches  long,  and 
three  and  a  half  inches  wide.  The  case  must  be 
folioed,  numbering  from  the  commencement  to  the 
end,  and  must  be  printed  on  the  outer  margin. 
Rule  33. 

Serving  appeal.]— At  or  before  noticing  the  appeal  fcr 
argument,the  appellant  must  serve  on  the  attorney  for 


266  NOTICE    OF    ARGUMENT. 

the  respondent, //iree  printed  copies  of  the  case.  If  the 
appellant  fails  to  serve  the  copies  at  such  time,  the  re- 
spondent having  noticed  the  appeal  for  argument, 
may  put  the  cause  on  the  calendar,  and  move  upon 
an  affidavit  of  the  facts  and  of  the  neglect  of  the  ap- 
pellant to  serve  the  case,  and  upon  notice  to  the  ap- 
pellant for  the  earliest  practicahle  day  in  term  for 
hearing  non-enumerated  motions,  that  the  cause  be 
stricken  from  the  calendar,  and  that  judgment  be 
rendered  in  his  favor.     Rule  32. 

The  court  in  which  the  motion  is  made,  to  strike 
the  cause  from  the  calendar,  may,  upon  sufficient 
cause  shown,  grant  relief,  upon  such  terms  as  shall 
be  just. 

Notice  of  argument.'] — Either  party  may  notice  the 
appeal  for  argument.  The  notice  must  be  served 
eight  days  before  the  first  day  of  the  term  at  which 
it  is  intended  to  bring  on  the  argument,  and  must 
specify  the  time  and  place  when  and  where  the  ap- 
peal will  be  heard.  The  appeal  can  only  be  heard 
in  the  judicial  district  embracing  the  county  in  which 
the  judgment  appealed  from  is  entered,  or  in  a  coun- 
ty adjoining  such  county,  though  not  in  the  same 
district.  Thus  an  appeal  from  a  judgment  entered 
in  Ulster  county  which  is  in  the  third  judicial  district, 
may  be  heard  at  a  general  term  of  the  court,  in 
Dutchess  county,  which  is  in  the  ^eco?^^/ judicial  dis- 
trict. But  such  appeal  cannot  be  heard  in  an  ad- 
joining district,  unless  the  court  for  such  district  is 
held  in  an  adjoining  county. 

The  cause  may  be  noticed  as  soon  as  the  printed 
case  is  ready  to  be  served. 

Note  of  issue] — The  party  noticing  the  appeal   for 


NOTE    OF    ISSUE.  267 

argument,  must,  eight  days  before  the  first  day  of 
the  term,  furnish  to  the  clerk  of  the  court,  where 
the  appeal  is  to  be  heard,  a  note  of  the  issue.  This 
is  a  brief  note  of  the  title  of  the  cause,  the  nature  of 
the  question,  the  date  of  the  issue,  and  the  names  of 
the  attornies  for  the  respective  parties,  {a.) 

Making  vp  culmdar.'] — The  calendar  is  made  up  by 
the  clerk,  in  duplicate,  for  the  use  of  the  court  and 
bar.  The  causes  are  arranged  upon  the  calendar  in 
the  order  of  the  dates  of  the  issues,  commencing 
with  the  oldest  issues. 

Argument.']  —When  the  appeal  is  reached  on  the 
calendar  and  called  on  for  argument,  the  appellant 
must  furnish  a  printed  copy  of  the  appeal  papers  to 
each  of  the  justices  holding  the  court.  Each  party 
must  at  the  same  time,  furnish  to  each  of  the  jus- 
tices and  to  each  other,  a  printed  copy  of  his  points. 
The  counsel  for  the  appellant  opens  the  argument ; 
the  counsel  for  the  respondent  replies,  and  the  coun- 
sel for  the  appellant  closes  the  argument.  But  one 
counsel  will  be  heard  on  each  side,  unless  there  are 
several  parties,  represented  by  different  attorneys 
and  counsel,  and  unless  the  court  shall  otherwise 
order ;  and  the  counsel  who  opens  the  argument 
and  the  one  who  closes  it,  must  be  the  same. 
Rule  14. 


a.  There  is  difBculty  in  determining  the  date  of  the  issue,  in  appeals  from  infe- 
rior courts,  inasmuch  as  no  rule  has  been  made  upon  the  subject  by  the  court, 
and  the  old  rules  are  wholly  inapplicable.  In  cases  oi  writs  of  error  to  in- 
ferior courts,  the  date  of  the  issue  was  the  time  the  joinder  in  error  was  put  in, 
now  there  is  no  joinder  in  error,  but  an  appeal ;  and  section  256  of  the  Code  re- 
lates to  trials  and  not  to  appeals,  besides  it  would  be  difficult  to  ascertain  when 
the  last  pleading  was  put  in,  in  cases  arising  in  a  justice's  court,  and  such  are 
chiefly  the  cases  that  come  up  from  a  county  court.  It  would  seem  most  consis- 
tent with  the  nature  of  the  case  to  take  the^/i;ig  of  the  return  of  the  clerk  as  the 
date  of  the  issue,  there  being  an  identity  in  the  practice  of  appeals  from  the 
Supreme  Court  to  the  Court  of  Appeals,  and  appeals  from  inferior  courts  to  the 
Supreme  Court.    Such  is  the  rule  of  the  Court  of  Appeals.    RuU  Ct.  of  Ap.  8. 


2'68  ARGUMENT. 

Either  party  having  noticed  the  appeal  for  argu- 
ment and  put  it  on  the  calendar,  may  if  the  other 
party  does  not  appear  to  argue,  move  for  and  take, 
upon  furnishing  proof  of  the  service  of  the  notice  of 
argument,  such  judgment  as  he  is  entitled  to,  either 
of  affirmance  or  reversal  of  the  judgment  of  the 
court  below.  Rule  28.  Where  a  default  is  thus  taken, 
it  is  the  duty  of  the  counsel  who  moves,  to  endorse 
upon  the  papers  his  name,  {Rnle  29,)  the  object  of 
that  being  to  enable  the  counsel  of  the  adverse  party 
to  give  him  notice  of  an  application  to  the  court  to 
open  the  default,  it  being  the  almost  invariable  prac- 
tice of  the  court,  to  open  defaults  thus  taken,  pro- 
vided the  counsel  who  took  it  is  at  the  place  where 
the  court  is  sitting,  and  has  notice  of  the  applica- 
tion to  open  the  default.  The  court  may,  however, 
require,  as  a  condition  of  opening  the  default  that 
the  cause  be  heard  at  the  same  term. 

SECTION  V. 
Of  the  Judgment  and  Proceedings  thereon. 

Decision  ] — The  decisions  of  the  court  are  usually 
made  at  the  end  of  each  term,  when  they  are  hand- 
ed in  to  the  clerk  and  entered  by  him  in  the  min- 
utes. Till'  decision  in  appeal  cases,  is  to  reverse, 
atlirm  or  modify  the  judgment  appealed  from,  in 
the  respect  mentioned  in  the  notice  of  appeal.  A 
concurrence  of  a  majority  of  the  justices  holding 
the  court,  is  necessary  to  pronounce  judgment. 

In  deciding  the  appeal,  the  court  may  leverse, 
affirm  or  n  odify  the  judgment  appealed  from,  as  to 
any  or  all  of  the  parties  interested.    They  may  also, 


OF    JUDGMENT    AND    PROCEEDINGS.  269 

if  necessary,  order  a  new  trial.  Code^  §  330.  In  ap- 
peals, however,  from  judgments  of  inferior  courts, 
the  decision  of  this  court  will  usually  be,  bimply 
affirming  or  reversing  the  judgment  of  the  court  be- 
low. 

There  are,  however,  cases  in  which  the  court  may 
send  the  cause  back  for  a  new  trial,  which  was 
formerly  denominated  awarding  a  i^raere  denovo.  The 
appeal  from  judgments  of  inferior  courts,  as  has  been 
stated,  is  a  substitute  for  the  writ  of  error,  under  the 
old  practice,  and  the  powers  of  the  appellate  court 
are  now  the  same  as  were  formerly  possessed  by 
the  Supreme  Court  upon  writs  of  error.  The  coun- 
ty courts  as  at  present  constituted,  have  no  general 
or  original  jurisdiction,  except  in  special  cases  con- 
ferred by  law ;  and  hence  the  judgments  brought 
into  this  court  for  review,  will  be  chiefly  such  as 
were  rendered  in  actions  arising  in  justices'  courts. 
In  such  cases  the  judgment  of  the  Supreme  Court, 
upon  the  appeal  will  be  simply  affirming  or  revers- 
ing the  judgment  of  the  county  court.  But  in  ac- 
tions for  the  foreclosure  of  mortgages  or  the  parti- 
tion of  lands,  or  such  other  actions  as  county  courts 
have  power  to  try,  the  Supreme  Court  upon  appeal 
from  judgments  rendered  therein,  may  affirm,  re- 
verse or  modify  the  same,  or  grant  a  new  trial. 

In  some  cases  the  court  will  not  only  reverse  the 
judgment  of  the  inferior  court,  but  will  go  further, 
and  render  such  judgment  as  the  court  below  ought 
to  have  rendered  (2  Hill,  391,  393):  thus,  they  will 
affirm  or  reverse  the  judgment  of  the  justice,  as  the 
case  may  be,  in  addition  to  reversing  the  judgment 
of  the  county  court. 


270  ENTERING    JUDGMENT. 

Costs] — Having  obtained  the  decisioh  of  the  court, 
the  next  step  is  to  make  out  a  bill  of  the  costs  and 
disbursements  to  which  the  prevailing  party  is  en- 
titled. As  to  which  see  ante  p.  214.  This  must  be 
adjusted  by  the  clerk  of  the  court  upon  a  two  days' 
notice  to  the  opposite  attorney,  and  inserted  by  the 
clerk  in  the  entry  of  judgment 

Entering  judgment.'] — The  court  having  decided  the 
appeal,  the  clerk  must  enter  the  proper  judgment. 
If  the  cause  is  decided  in  a  county  other  than  that 
in  wliich  the  judgment  appealed  from  is  filed,  the 
prevailing  party  must  obtain  from  the  clerk  of  the 
court,  where  the  decision  was  made,  a  certified  copy 
of  the  rule  or  order  entered  in  the  minutes,  which 
must  be  filed  in  the  office  of  the  clerk  where  the 
judgment  roll  appealed  from  is  filed.  A  copy  should 
also  be  served  upon  the  opposite  attorney.  In  en- 
tering the  judgment,  if  the  judgment  of  the  court 
below  is  affirmed,  the  prevailing  party  is  entitled  to 
interest  upon  such  judgment,  by  way  of  damages. 
The  judgment,  therefore,  lo  be  entered,  is  for  the 
amount  of  the  judgment  appealed  from,  with  inte- 
rest upon  such  amount,  together  with  the  costs  and 
disbursements  allowed  by  law.  The  interest  is 
computed  or  assessed  by  the  clerk. 

The  proceedings  are  not  remitted  to  the  court 
below,  but  the  judgment  upon  the  appeal  is  enforced 
in  this  court,  in  the  same  manner  as  other  judg- 
ments. 

The  judgment  upon  appeal,  must  be  entered  in 
the  county  where  the  judgment  appealed  from  was 
entered.  Code,  §  347. 


CHAPTER  IX. 

APPEALS  TO  THE  GENERAL  TERM  OF  THE  SU- 
PREME COURT,  FROM  JUDGMENTS  ENTERED 
UNDER  THE  DIRECTION  OF  A  SINGLE  JUDGE 
OF  THE  SAME  COURT. 

The  only  manner  in  which  the  decisions  and 
proceedings  of  the  judge  and  jury,  upon  the  trial 
of  a  cause,  can  be  reviewed,  is  upon  an  appeal 
from  the  judgment.  In  this  respect  the  practice  is 
changed ;  and  in  reviewing  the  judgments  entered 
under  the  direction  of  a  single  judge  of  the  same 
court,  the  general  term  of  this  court  acts  in  its 
appellate  capacity  only.  Formerly,  where  a  case,  or 
bill  of  exceptions,  or  special  verdict,  6r  the  like  was 
made,  with  a  view  of  moving  to  set  aside  a  verdict 
or  non-suit,  for  error  of  the  judge,  it  was  first  argued 
before  the  circuit  judge,  for  which  purpose  a  stay  of 
proceedings  was  granted  until  the  argument  and 
decision  of  the  circuit  judge;  or,  by  direction  of 
the  circuit  judge,  the  case  might  go  directly  to  the 
Supreme  Court,  without  being  first  argued  before 
the  circuit  judge.  In  either  case,  however,  the 
entry  of  judgment  was  stayed  until  the  decision  of 
the  court  upon  the  case,  or  bill  of  exceptions,  or 
special  verdict,  and  the  like. 

The  practice  now,  however,  is  essentially  differ- 
ent.    As  has  been  seen,  {ante,)  the  case,  bill  of  ex- 


272  APPEALS,    WHEN    AND    BY    WHOM    TAKEN. 

ceptions,  or  special  verdict  is  settled,  and  filed  with 
the  clerk  of  the  county,  with  whom  the  judgment 
is  entered,  and  by  him  attached  to  the  judgment 
roll.  Having  done  this,  the  party  wishing  to  review 
is  in  a  condition  to  appeal,  {Livingston  v.  Miller, 
1  Code  Rep.  117,)  and  then  must  take  the  necessary 
steps  to  get  his  case  before  the  court  by  appealing 
from  the  judgment,  and  the  appeal  carries  up  the 
judgment  roll,  which  contains  all  that  is  required  to 
present  the  questions  to  the  court  for  review. 

SECTION  I. 

Appeal  when  and  by  whom  Taken,  and  from  what 
Judgments  or  Orders. 

When  taken.^ — An  appeal  from  a  judgment  in  the 
Supreme  Court,  entered  under  the  direction  of  a 
single  judge,  or  upon  the  report  of  referees,  must  be 
taken  within  thirty  days  after  written  notice  of  the 
judgment  shall  have  been  received  by  the  party  in- 
tending to  appeal.  So  that  the  only  way  of  limit- 
ing the  time  for  bringing  the  appeal,  is  by  giving  to 
the  party  against  whom  the  judgment  is  entered,  a 
written  notice  of  the  entering  of  the  same.  Code,  § 
332. 

By  whom.] — The  appeal  may  be  taken  by  the  par- 
ty against  whom  the  judgment  was  rendered,  and 
in  some  cases,  a  party  may  appeal  from  a  judgment 
in  his  own  favor;  as,  where  he  recovers  less  da- 
mages than  he  is  entitled  to.  The  provision  of  law 
(2  Rev.  Stat.  592,  §  2,)  in  respect  to  the  parties  by 
and  against  whom  writs  of  error  may  be  brought, 
the  joinder  of  parties,  and  the  proceedings  on  the 


APPEALS    FROM    JUD«i*i^NTS.  273 

death  or  marriage  of  parties,  it  is  presumed  will  all 
apply  to  appeals  brought  under  the  Code,  there 
beino-  nothiiiff  in  such  law  inconsistent  with  the 
provisions  of  the  Code.  But  see  post  p.  289,  under 
head  of  "Appeals  to  the  Court  of  Appeals." 

Appeals  from  judgments.'] — The  judgments,  as  has 
been  seen,  are  such  as  are  entered  under  the  direc- 
tion of  a  single  judge,  or  upon  the  report  of  referees. 
Code,  §  278.  They  must  be  judgments  entered  upon 
the  direction  of  a  single  judge  in  the  Supreme 
Court  or  in  the  Superior  Court  of  the  city  of 
New- York,  or  the  Court  of  Common  Pleas  of  the 
city  and  county  of  New-York.  Hence,  judgments 
of  county  courts,  or  mayors'  or  recorders'  courts 
of  cities,  are  not  included  among  the  judgments 
from  which  an  appeal  may  be  taken  to  the  general 
term,  as  provided  by  the  Code,  §  348.     See  ante  p.  251. 

Appeals  from  orders.] — In  the  same  manner  that 
appeals  from  judgments  may  be  taken,  and  within 
the  same  time,  an  appeal  may  also  be  taken  from 
an  order  made  by  a  single  judge  of  the  same  court, 
and  such  order  may  thereupon  be  reviewed  in  the 
following  cases : 

1.  When  the  order  grants  or  refuses  a  provisional 
remedy : 

2.  When  it  involves  the  merits  of  the  action,  or 
some  part  thereof: 

3.  When  the  order  decides  a  question  of  practice 
which  in  effect  determines  the  action,  without  a 
trial,  or  precludes  an  appeal : 

4.  When  the  order  is  made  upon  a  summary 
application  in  an  action  after  judgment,  and  aifects 
a  substantial  right. 

18 


274  NOTICE    OF    APPEAL. 

In  addition  to  these  orders,  an  appeal  may  also 
be  taken  to  the  freneral  term,  from  an  order  made 
out  of  court  upon  notice.  This  includes  such  orders 
as  may  be  made  by  a  judge  at  chambers;  such  as 
orders  for  injunctions,  attachments  and  the  like. 
But  the  order  to  be  an  appealable  one,  must  be  one 
of  the  several  orders  above  mentioned. 

Before  an  order  made  out  of  court,  can  be  appeal- 
ed from,  it  must  first  be  entered  with  the  clerk  of 
the  county  in  which  ihe  action  is  triable  or  pend- 
ing. For  this  purpose  the  party  affected  by  the 
order  and  who  wishes  to  appeal  may  require  the 
order  to  be  entered  with  the  clerk,  and  may  get  the 
direction  of  the  judge  who  made  the  order,  requiring 
it  to  be  filed. 

As  it  will  be  more  appropriate  to  treat  of  appeals 
from  orders  in  connection  with  "  Motions,"  the  fur- 
ther consideration  of  the  subject  will  here  be  omit- 
ted.    But  see  post. 

SECTION  II. 

Of  the  Proceedings  to  Perfect  the  Appeal. 

Notice  of  Appeal.} — A  party  wishing  to  appeal,  must 
prepare  a  notice  stating  that  he  appeals  from  the 
judgment,  or  from  some  specified  part  thereof,  to 
the  general  term.  The  judgment  appealed  from 
must  be  described  with  accuracy  and  certainty,  and 
if  the  whole  judgment  is  not  appealed  from,  but  the 
party  i  .tends  to  review  only  a  part  of  it,  he  must 
specify  accurately  the  part  or  portion  of  the  judg- 
ment appealed  from.  For  form  of  notice,  see  Ap- 
pendix. 

Service.']— T\\G  notice  of  appeal  must  be  served  on 


THE    UNDERTAKING.  275 

the  adverse  party,  or  it  may  be  served  upon  his  at- 
torney, if  the  judgment  appealed  from,  was  entered 
by  a.n  attorney.  It  must  also  be  served  on  the  clerk 
with  whom  the  judgment  was  entered.  This  notice 
may  be  served  like  other  notices  in  actions,  as  to 
which  see  post.  It  need  not  be  a  personal  service, 
but  may  be  by  mail  or  otherwise,  as  in  the  case  of 
other  notices. 

The  undertaking.'] — To  render  the  appeal  effectual 
for  any  purpose,  a  written  undertaking  must  be  ex- 
ecuted on  the  part  of  the  appellant,  by  at  least  two 
sureties,  to  the  effect  that  the  appellant  will  pay  all 
costs  and  damages,  which  may  be  awarded  against 
him  on  the  appeal,  not  exceeding  two  hundred  and 
fifty  dollars.  Or  the  appellant  may  deposite  with 
the  clerk,  with  whom  the  judgment  appealed  from 
was  entered,  the  sum  of  two  hundred  and  fifty  dol- 
lars, to  abide  the  event  of  the  appeal.  Cod,e,  §  834. 

This  undertaking  or  deposite  or  both  may  be 
waived  by  the  written  consent  on  the  part  of  the 
respondent.   Code.,  \  334. 

The  undertaking  above  mentioned,  will  be  suffi- 
cient to  perfect  the  appeal  in  all  cases  where  a  stay 
of  execution  upon  the  judgment  is  not  desired  ;  or 
where  the  judgment  appealed  from  does  not  direct 
the  payment  of  money,  or  some  act  or  thing  to  be 
done  by  the  party  against  whom  the  judgment  is 
made. 

If,  however,  the  appeal  be  from  a  judgment  di- 
recting the  payment  of  money,  it  will  not  stay  the 
execution  of  the  judgment,  unless,  in  addition  to 
the  undertaking  to  pay  costs,  (see  Langley  %■  Langley 
V.  Warner,    1  Com.  Rep.  606,)  a  written  undertaking 


276  THE    UNDERTAKING. 

be  executed  on  the  part  of  the  appellant,  by  at  leaitt 
two  sureties,  to  the  effect  that  if  the  judgment  ap- 
pealed from,  or  any  part  thereof,  be  affirmed,  the  ap- 
pellant will  pay  the  amount  directed  to  be  paid  by 
the  judgment,  or  the  part  of  such  amount,  as  to^ 
which  the  judgment  shall  be  affirmed,  if  it  be  affirm- 
ed only  in  part,  and  all  damages  whicth  shall  be 
awarded  against  the  appellant,  upon  the  appeal.. 
Code,  §  335. 

Both  the  undertakings  may  be  embraced  in  one, 
and  it  is  not  necessary  that  they  should  be  separate^ 
If  the  judgment  appealed  from  direct  the  assign- 
ment or  delivery  of  documents  or  personal  property^ 
the  execution  of  the  judgment  will  not  be  stayed 
by  the  appeal,  unless  (in  addition  to  giving  the  un- 
dertaking to  pay  costs,)  the  things  required  to  be  as- 
signed or  delivered  be  brought  into  cout,  or  placed). 
in  the  custody  of  such  officer  or  receiver,  as  the 
court  shall  direct,  or  unless  an  undertakinoi'  be  en- 
tered  into  on  the  part  of  the  appellant,  by  at  least 
two  sureties,  and  in  such  amount  as  the  court  or 
judge  thereof,  or  county  judge  shall  direct,  to  the 
effect  that  the  appellant  will  obey  the  order  of  the 
appellate  court,  upon  the  appeal.  Code,  336: 

If  the  judgment  appealed  from  direct  the  execu- 
tion of  a  conveyance,  or  other  instrument,  the  exe- 
cution of  the  judgment  will  not  be  stayed  by  the 
appeal,  until  the  instrument  shall  have  been  execu- 
ted, and  deposited  with  the  clerk,  with  whom  the 
judgment  is  entered,  to  abide  the  judgment  of  the 
appellate  court.  Code,  §337. 

If  the  judgment  appealed  from,  direct  the  sale  or 
delivery  of  possession  of  personal  property,  the  exe- 
cution of  the  judgment  will  not  be  stayed,  unless  a 


THE  UNDERTAKING.  277 

written  undertaking  be  executed  on  the  part  of  the 
appellant,  with  two  sureties,  to  the  effect  that  du- 
ring the  possession  of  such  property  by  the  appellant 
he  will  not  commit  or  suffer  to  be  committed  any 
waste  thereon,  and  that  if  the  judgment  be  affirmed, 
he  will  pay  the  value  of  the  use  and  occupation  of 
the  firoperty,  from  the  time  of  the  appeal,  until  the 
delivery  of  possession  thereof,  pursuant  to  the  judg- 
ment, not  exceeding  a  sum  to  be  fixed  by  a  judge  of 
the  court,  by  which  the  judgment  was  rendered,  and 
which  must  be  specified  in  the  undertaking. 

When  the  judgment  is  for  the  sale  of  mortgaged 
premises,  and  the  payment  of  a  deficiency  arising 
upon  the  sale,  the  undertakmg  must  also  provide  for 
the  payment  of  such  deficiency.     Code  ^  338. 

In  all  cases  of  appeal,  there  must  be  an  underta- 
king Xo  pay  costs,  in  addition  to  any  or  either  of  the 
other  undertakings  above  mentioned.  Langly  and 
Lankly  vs.  Warner,  I  Com.  Rep.  600.  But  all  the  un- 
dertakings required  to  make  the  appeal  effectual  or 
to  suspend  the  execution  of  judgment  appealed  from 
may  be  embraced  in  one  instrument  and  they  need 
not  be  separated.  They  may,  however,  be  in  sepa- 
rate instruments,  at  the  option  of  the  appellant. 
Code  §  340. 

It  is  not  necessary  for  the  appellant  to  execute 
the  undertaking.  It  will  be  sufficient  if  it  is  exe- 
cuted by  two  sureties,  without  the  appellant. 

The  undertaking  need  not  be  approved.  It  is  re- 
quired by  rule  {Ride  76,)  that  the  undertaking  shall 
be  duly  proved  or  acknowledged  in  the  manner 
prescribed  by  law  for  the  proof  or  acknowledgment 
of  deeds  of  real  property,  before  the  same  shall  be 
^•eceiv^ed  or  filed.     In  cases  of  appeal  not  provided 


278  THE    UNDERTAKING, 

for  in  sections  335,  336,  337  and  338,  of  the  Code,, 
the  perfecting  an  appeal,  by  giving  an  undertaking, 
on  the  part  of  the  appelhint,  executed  by  at  least 
two  sureties,  to  the  effect  that  the  appellant  will 
pay  all  costs  and  damages  which  may  be  award- 
ed against  him  on  the  appeal,  not  exceeding  two- 
hundred  and  fifty  dollars;  or  by  depositing  that  sum 
with  the  clerk,  with  whom  the  judgment  was  en- 
tered, to  abide  the  event  of  the  appeal,  will  stay  all 
proceedings  upon  the  judgment  appealed  from,  ex- 
cept that  where  it  directs  the  sale  of  perishable 
property,  the  court  may  order  the  property  to  be 
sold,  and  the  proceeds  thereof  to  be  deposited  or 
invested,  to  abide  the  judgment  of  the  appellate 
court.   Code,  §  342. 

Where  a  sum  to  be  inserted  in  the  undertaking 
is  to  be  fixed  by  a  judge,  as  in  the  case  of  an  ap- 
peal from  a  judgment,  directing  the  sale  or  delivery 
of  possession  of  real  property,  the  judge  may  ascer- 
tain the  same  by  a  reference,  or  by  an  affidavit,  or 
otherwise. 

Upon  the  appeal  being  perfected,  that  is  upon  the 
service  of  the  notice  of  appeal  and  the  execution 
of  the  appropriate  undertaking,  as  provided  by  law, 
it  stays  all  further  proceedings  upon  the  judgment 
appealed  from,  or  upon  the  matter  embraced  there- 
in ;  but  the  court  may  proceed  upon  any  other 
matter  included  in  the  action,  and  not  affected  by 
the  judgment  appealed  from.   Code,  §  339. 

Affidavit  annexed  to  undertaking  ] — The  undertaking 
must  be  accompanied  by  an  affidavit  of  the  sureties, 
that  they  are  each  worth  double  the  amount  speci- 
fied therein,  otherwise  the  undertaking  will  be  of  no 


THE   UNDERTAKING.  279 

effect,  {Code  §  341,)  and  the  appeal  will  not  stay  the 
proceedings  upon  the  judgment  appealed.  And  it 
would  seem  that  the  sureties  must  be  householders 
or  freeholders  of  this  state,  as  they  are  required  to 
justify  upon  exception  in  the  same  manner  as  bail 
taken  upon  the  arrest  of  a  defendant.  It  is  unne- 
cessary, however,  to  state  in  the  afiidavit  that  the 
sureties  are  householders  or  freeholders.  But  it  will 
be  sufficient  if  they  swear  that  they  are  each  worth 
double  the  amount  specified  in  the  undertaking. 

Serving  copy  undertaki?ig.] — At  the  time  of  serving 
the  notice  of  appeal,  a  copy  of  the  undertaking,  in- 
cludinsr  the  names  and  residence  of  the  sureties, 
must  also  be  served  on  the  adverse  party,  unless  the 
appellant  makes  a  deposit  of  money  instead  of  exe- 
cuting an  undertaking  for  the  payment  of  costs. 
The  copy  undertaking  is  served  in  the  same  man- 
ner as  notices  and  other  papers  in  the  action,  and 
may  be  upon  the  adverse  party  or  upon  his  attorney 
if  he  have  one.  It  is  well  to  serve  also  a  copy  of 
the  affidavit  of  the  sureties,  though  it  need  not  be. 
Code  340. 

Excepting  to  sureties,] — Within  ten  days  after  re- 
ceiving notice  of  the  appeal,  and  a  copy  of  the  un- 
dertaking, the  respondent,  if  he  is  not  satisfied  with 
the  sufficiency  of  the  sureties,  may  except  thereto. 
For  this  purpose  he  must  serve  upon  the  appellant's 
attorney,  a  written  notice  that  he  excepts  to  the  suf- 
ficiency of  the  sureties.  If  the  respondent  omits  to 
gve  this  notice,  until  after  ten  days  from  the  receipt 
of  the  copy  underktaing  and  notice  of  appeal,  he 
will  waive  his  right  to  require  the  sureties  to  justify. 
Sureties  justifying.] — The  appellant's  attorney  hav- 
ing received   notice  of  exception  to  the  sufficien- 


280  OTHER   SURETIES. 

cy  of  the  sureties,  he  must  see  that  they  justify,  and 
if  they  fail  to  do  so,  and  other  sureties  are  not  put 
in,  the  appeal  will  be  regarded  as  if  no  undertaking 
had  been  given.  Code,  \  341.  Within  ten  days  next 
succeeding  the  receipt  of  notice  of  exception,  the 
sureties  must  justify  before  a  judge  of  the  court,  or 
before  a  county  judge.  For  this  purpose,  a  notice 
must  be  served  on  the  respondent's  attorney,  at 
least  ^ue  days  before  the  time  specified  therein  when 
the  sureties  will  justify,  stating  the  time,  place,  and 
name  of  the   judge  before  whom   the  sureties  will 

justify. 

Sureties,  in  an  undertaking  given  upon  an  appeal, 
cannot  justify  before  a  justice  of  the  peace,  as  in 
cas5  of  bail  given  upon  the  arrest  of  a  defendant. 
Code,^  3  41. 

Olher  sureties.] — Instead  of  causing  the  sureties 
already  given  to  justify,  the  appellant  may,  within 
the  same  time,  (i.  e.  ten  days  after  the  notice  of  the 
exception,)  give  a  written  notice  to  the  respondent's 
attorney,  that  other  sureties,  (whose  places  of  resi- 
dence and  occupation  must  be  stated  in  the  notice,) 
will  in  like  manner  justify  before  the  judge.  The 
notice  must  specify  the  time,  place,  and  name  of 
the  judge  before  whom  the  new  sureties  will  justify, 
and  must  be  served  at  least  five  days  before  the  time 
mentioned  in  the  notice. 

In  case  the  new  sureties  justify,  a  new  undertak- 
ing must  be  executed,  in  the  form  and  to  the  effect 
prescribed  by  law  for  the  first  undertaking,  and  the 
new  sureties  must  justify  in  the  same  ir,anner  as  is 
required  in  the  case  of  the  fir.:t  sureties. 

Manner  of  justifying.] — At  the  time  and  place  spe- 


FILING   UNDERTAKING.  281 

cified  in  the  notice,  each  of  the  sureties  must  attend 
before  the  judge,  who  must  administer  to  the  sure- 
ties an  oath,  that  they  will  truly  answer  all  ques- 
tions that  may  be  put  to  them  touching  their  pro- 
perty and  sufficiency  as  sureties.  The  respondent's 
attorney  may  then  examine  the  sureties  in  such 
manner  as  the  judge  may  think  proper.  If  required 
by  the  respondent's  attorney,  the  examination  of  the 
sureties  must  be  leduced  to  writing  by  the  judge, 
and  subscribed  by  the  sureties.  If  the  judge  finds 
the  sureties  sufficient,  he  must  annex  their  exami- 
nation (if  the  same  shall  have  been  reduced  to  writ- 
ing) to  the  undertaking,  and  endorse  upon  the  un- 
dertaking an  allowance  of  the  sufficiency  of  the 
sureties. 

The  qualifications  of  sureties  and  the  manner  of 
justifying,  is  the  same  as  in  case  of  bail  taken  on 
arrest.     Cude,  §  341. 

Filing  undertaking.^^ — The  undertaking  mast  be  filed 
with  the  clerk,  with  whom  the  judgment  appealed 
from  was  entered.     Code,  §  343. 

Dcposite.] — If  no  stay  of  execution  is  required,  the 
appellant  instead  of  giving  the  undertaking,  may 
deposite  with  the  clerk  with  whom  the  judgment 
appealed  from  is  entered,  the  sum  of  two  hundred 
and  fifty  dollars,  to  abide  the  event  of  the  appeal. 
{Code,  §  334.)  In  this  case  notice  of  the  deposite  must 
be  given  to  the  opposite  party.     Code,  §  340. 


282  PREPARING    APPEAL    FOR    ARGUMENT. 

SECTION  III. 

Of  Preparing  the  Appeal  for  Argument. 

The  appellant  having  perfected  his  appea;,  the 
next  step  is  to  prepare  the  appeal  for  argument. 

Preparing  papers  ] — An  appeal  from  a  judgment 
entered  in  the  Supreme  Court,  is  to  be  heard  upon 
the  judgment  roll  and  the  notice  of  appeal  It  is 
not  necessary  to  obtain  the  return  of  the  clerk,  as  in 
the  case  of  an  appeal  from  a  judgment  of  an  infe- 
rior court,  but  the  cause  remains  in  the  same  court, 
and  the  appellate  court  has  access  to  and  control 
over  the  records  in  the  office  of  the  clerk.  There  is, 
therefore,  no  transcript  necessary.  But  the  appel- 
lant must  procure  from  the  clerk  a  copy  of  the  judg- 
ment roll;  which,  however,  need  not  be  certified. 
A  case  must  then  be  prepared  by  the  appellant,  con- 
sisting  of  the  judgment  roll  and  notice  of  appeal. 

The  case  must  also  contain  a  statement  of  the 
time  of  the  commencement  of  the  suit,  and  of  the 
service  of  the  respective  pleadings;  the  names  of 
the  orighial  parties  in  full;  the  change  of  parties, 
if  any  has  taken  place,  pending  the  suit,  and  a  very 
brief  history  of  the  proceedings  in  the  cause;  and 
also  an  abstract  of  the  pleadings,  not  exceeding  one- 
sixth  of  the  number  of  folios  contained  in  the  origi- 
nal pleadings.  Rule  32. 

The  points  intended  to  be  relied  on  in  argument, 
with  a  reference  to  the  authorities  in  support  of  the 
same,  must  also  be  prepared. 

In  cases  where  it  is  necessary  for  the  court  to  go 


PRINTING    CASE    AND    POIMTS.  283^ 

into  an  extended  examination  of  evidence,  each 
party  must  state  upon  his  points  the  leading  facts 
which  he  deems  established,  with  a  reference  to 
the  folios  where  the  evidence  of  such  facts  may  be 
found.  Rule  34. 

It  is  the  duty  of  the  appellant,  in  all  cases,  to 
prepare  the  case  {Ride  32,)  upon  which  the  appeal  is 
to  be  heard,  and  furnish  the  necessary  copies  there- 
of, and  the  respondent  has  no  right  to  make  it  up. 

Printing  case  and  points.'] — The  case  and  points,  and 
all  other  papers  to  be  furnished  to  the  court,  in  cal- 
endar causes,  must  be  printed  on  white  writing 
paper,  with  a  margin  on  the  outer  edge  of  the  leaf, 
not  less  than  one  and  a  half  inch  wide.  The  print- 
ed page,  exclusive  of  any  marginal  reference,  must 
be  seven  inches  long  and  three  and  a  half  inches 
wide.  The  folio,  numbering  from  the  commence- 
ment to  the  end  of  the  case,  must  be  printed  on  the 
outer  margin.  Rule  33. 

Serving  case.] — At  or  before  noticing  the  appeal  for 
argument,  the  appellant  must  serve  on  the  attorney 
for  the  respondent  three  printed  copies  of  the  case. 
If  the  appellant  fails  to  serve  the  copies  at  such  time, 
the  respondent,  having  noticed  the  appeal  for  argu- 
ment, may  put  the  cause  on  the  calendar,  and  move 
upon  an  affidavit  of  the  facts,  and  of  the  neglect  of 
the  appellant  to  serve  the  case,  and  upon  notice  to 
the  appellant,  for  the  earliest  practicable  day  in  term 
for  hearing  non-enumerated  motions,  that  the  cause 
be  stricken  from  the  calendar,  and  that  judgment 
be  rendered  in  his  favor.  Rule  32. 

The  court,  in  which  the  motion  is  made  to  strike 
the  cause  from  the  calendar,    may   upon  sufficient 


^84  NOTICE   OF    ARGUMENT. 

€ause  shovvn,  grant  relief  upon  such  terms  as  shall 
be  just. 

Notice,  of  argument.^ — The  appeal  may  be  noticed 
for  argument  by  either  party.  The  notice  must  be 
served  eight  days  before  the  first  day  of  the  term  at 
which  it  is  intended  to  bring  on  the  argument,  and 
must  specify  the  time  and  place  when  and  where 
the  appeal  will  be  heard.  The  appeal  can  only  be 
heard  in  the  judicial  district  embracing  the  county 
in  which  the  judgment  appealed  from  is  entered,  or 
in  a  county  adjoining  the  one  where  the  judgment 
is  entered,  and  must  be  heard  at  a  general  term. 
The  appeal  may  be  noticed  for  argument  as  soon  as 
the  appeal  is  perfected.  Sufficient  time,  however, 
should  be  given  to  have  the  appeal  printed,  and  that 
there  has  not  been  sufficient  time  to  have  it  printed 
will  be  a  good  answer  to  a  motion  to  strike  the  cause 
from  the  calendar. 

Note  of  issue. — The  party  noticing  the  appeal  for 
argument  must,  eight  days  before  the  first  day  of  the 
term  at  which  it  is  intended  to  bring  on  the  argu- 
ment, furnish  the  clerk  of  the  court,  where  the 
appeal  is  to  be  heard,  with  a  note  of  the  issue.  This 
is  a  brief  note  of  the  title  of  the  cause,  the  nature 
of  the  question,  the  date  of  the  issue,  and  the  names 
cf  the  attorneys  for  the  respective  parties.  The  date 
of  the  issue  in  appeals,  bringing  up  cases  or  bills  of 
exceptions,  will  be  the  day  when  the  verdict  in  the 
cause  was  taken,  non-suit  granted  or  report  made. 
{Old  rules  of  Svp.  Ct.  52.)  No  new  rule  upon  the  sub- 
ject has  been  made,  and  the  old  rule  must  govern. 
Rule  92. 

Matiing  up  calendar.] — The  calendar  of  causes  for 
argument  at  the  general  term,  is  made  up  by  the 


ARGUMENT.  285 

clerk  in  duplicate,  one  for  the  u^e  of  the  court,  and 
one  for  the  use  of  the  bar.  The  causes  are  arranged 
on  the  calendar  in  the  order  of  the  dates  of  the  is- 
sues, commencing  with  the  oldest  dates. 

Argument.'] — AVhen  the  appeal  is  reached  on  the 
calendar  and  called  on  for  argument,  the  appeUant 
must  furnish  a  printed  copy  of  the  case,  to  each  of 
the  justices  holding  the  court.  Each  party  must 
furnish  at  the  same  time,  to  each  of  the  justices 
and  to  each  other,  a  printed  copy  of  his  points.  The 
counsel  for  the  appellant  opens  the  argument;  the 
counsel  for  the  respondent  replies,  and  the  counsel 
for  the  appellant  closes  the  argument.  Only  one 
counsel  on  each  side  will  be  heard,  unless  the  court 
otherwise  direct.     Rule  14. 

Either  party  having  noticed  the  appeal  for  argu- 
ment and  put  it  on  the  calendar,  may,  if  the  other 
party  does  not  appear  to  argue,  move  ibr  and  take, 
upon  furnishing  proof  of  the  service  of  the  notice  of 
argument,  such  judgment  as  he  claims  to  be  entitled 
to  ;  either  of  affirmance  or  reversal,  or  an  order  for 
a  new  trial,  as  the  case  may  be.     Rule  28. 

AVhere  a  default  is  thus  taken,  it  is  the  duty  of  the 
counsel  who  moves,  to  endorse  upon  the  papers  his 
name.  Rule  29.  The  object  of  this  being  to  en- 
able the  opposite  party, to  give  him  notice  of  an  ap- 
plication to  the  court  to  open  the  default;  its  being 
the  almost  invariable  practice  of  the  court  to  open 
defaults  thus  taken,  provided  the  counsel  who  took 
the  default  is  at  the  place  where  the  court  is  sitting 
and  has  notice  of  the  application.  The  court  will, 
however,  usually  require,  as  a  condition  of  the  open- 
ing of  the  default,  that  the  cause  be  argued  at  the 
same  term^ 


286  JUDGMENT    AND    PROCEEDINGS    THEREON. 

SECTION  IV. 
Of  the  Judgment  and  Proceedings  thereon. 

Decision.] — The  decisions  of  the  court  at  the  gen- 
eral term,  are  usually  made  at  the  end  of  the  term, 
when  they  are  handed  to  the  clerk  of  the  court,  and 
entered  by  him  in  the  minutes.  The  decision  upon 
the  appeal  is  either  to  reverse  or  affirm,  or  modify 
the  judgment  appealed  from,  and  they  may  grant  a 
new  trial.  Code  §  330.  But  the  court  will  not  mod- 
ify the  judgment  appealed  from  excep:  in  the  respect 
mentioned  in  the  notice  of  appeal.  A  concurrence 
of  a  majority  of  the  justices  holding  the  court,  are 
necessary  to  pronounce  a  judgment.     Code  §  19. 

Costs.] — Having  obtained  the  decision  of  the  court, 
the  next  step  is  to  make  out  a  bill  of  the  costs  and 
disbursements  to  which  the  prevailing  party  is  enti- 
tled, as  to  which  see  ante  p.  203.  The  costs  must  be 
adjusted  by  the  clerk  of  the  court,  upon  a  two  days 
notice  to  the  opposite  party,  and  inserted  by  the  clerk 
in  the  entry  of  judgment. 

Entering  judgment.] — The  court  having  decided  the 
appeal,  the  clerk  must  enter  the  proper  judgment. 
If  the  cause  is  decided  in  a  county  other  than  that 
in  which  the  judgment  roll  is  filed,  the  prevailing 
party  must  obtain  from  the  clerk  where  the  decision 
is  made,  a  certified  copy  of  the  rule  or  order  entered 
in  the  minutes,  which  with  the  costs  and  disburse- 
ments and  the  judgment  thereon  should  be  attach- 
ed together  and  filed  in  the  office  of  the  clerk  in 
which  the  judgment  was  filed,  and  the  judgment 
docketed.     The  judgment  is  a  brief  statement  of  the 


TURNING    CASE   INTO   BILL    OF    EXCEPTIONS.  287 

appeal,  and  the  decision  thereon,  and  the  judgment 
of  the  court,  which  is,  that  the  judj^ment  appealed 
from  is  reversed,  or  affirmed  or  modified  in  the  par- 
ticulars stated,  and  that  tlii^  suceessful  party  recover 
his  costs  and  disbursements.  Wliere  the  appellate 
court  grant  a  new  trial,  no  judgment  is  necessary, 
unless  costs  on  the  appeal  are  awarded,  when  the 
judgment  will  be  for  costs.  A  copy  of  the  rule  or 
order  entered  upon  the  decision  of  the  court  should 
in  all  cases  be  served  upon  the  opposite  party. 

SECTION  V. 

Of  TURNING  A  Case  into  a  Special  Verdict  or  Bill 

OF  Exceptions. 

The  object  of  turning  a  case  into  a  special  ver- 
dict or  bill  of  exceptions,  is  to  enable  the  party  to 
appeal  from  the  judgment  of  the  general  term  to 
the  Court  of  Appeals.  Where  a  case  is  made  and  not 
a  bill  of  exceptions  or  special  verdict,  and  no  right 
is  reserved  at  the  trial  to  turn  it  into  one  or  the  oth- 
er, the  Court  of  Appeals  will  refuse  to  hear  it  upon 
appeal  or  otherwise.  Livingston  v.  Raddiff",  3  Hoiv. 
Pr.  R.  All.  Hence,  as  has  been  stated,  {ante  p.  236) 
a  party  wishing  to  reserve  the  right  to  go  to  the  (^ourt 
of  Appeals,  should  at  the  trial  procure  from  the  oppo- 
site party  a  stipulation,  giving  him  the  right  to  turn  the 
case  into  a  special  verdict  or  bill  of  exceptions. 

The  practice  of  turning  a  case  into  a  special  ver- 
dict or  bill  of  exceptions,  is  regulated  by  rule,  and 
is  as  follows:  Within  thirty  days  after  notice  of  the 
decision  of  the  case,  the  party  intending  to  appeal 
must  prepare  the  special  verdict  or  bill  of  excep- 
tions in  form,  and  serve  a  copy  on  the  opposite  par- 


288  OF    EXCEPTIONS. 

ty.  Rule  20.  The  special  verdict  or  bill  of  excep- 
tions must  be  drawn  up  in  the  same  form  as  though 
the  exceptions  had  been  taken  at  the  trial,  stating 
only  the  facts  established  by  the  evidence,  and  not 
the  evidence  itself  5  Hill,  579.  No  notice  need  be 
taken  of  the  case,  or  of  the  stipulation.  Id.  The 
bill  of  exceptions  must  be  signed  by  the  judge  who 
tried  the  cause,  as  in  ord  nary  cases,  or  it  may  be 
settled  by  any  one  of  the  justices  of  the  Supreme 
Court.  Rule  20. 

The  party  on  whom  the  special  verdict  or  bill  of 
exceptions  is  served,  may  propose  amendments 
thereto  within  twenty  days.  Rule  20.  And  if  no 
amendments  are  proposed,  and  served  within  such 
time,  the  verdict  or  bill  of  exceptions  as  proposed, 
will  be  deemed  to  be  assented  to.  Rule  21.  If  the 
amendments  are  not  assented  to  by  the  parties  pro- 
posing the  special  verdict  or  bill  of  exceptions,  they 
must  be  settled  by  one  of  the  justices  of  this  court, 
on  a  notice  to  the  opposite  party  within  ten  days 
after  the  service  of  the  amendments.  Rule  20. 

After  the  special  verdict  or  bill  of  exceptions  is 
settled,  it  must  be  signed  by  the  judge,  and  filed  in 
the  office  of  the  clerk  of  the  court  where  the  judg- 
ment of  the  court  is  entered,  and  annexed  to  the 
judgment  roll.  Rule  19. 

If  the  special  verdict  or  bill  of  exceptions  is  not 
served  within  the  thirty  days,  the  prevailing  party 
will  be  at  liberty  to  proceed  as  though  no  special 
verdict  or  bill  of  exceptions  had  been  taken.  Rule  21. 

Jppcall — Either  party,  after  the  special  verdict  or 
bill  of  exceptions  is  filed,  may  appeal  from  the  de- 
cision of  the  Supreme  Couit  to  the  Court  of  Appeals. 
S>eepo.st,p.  289. 


CHAPTER  X. 

OF  APPEALS  FROM  THE  SUPREME  COURT  TO  THE 
COURT  OF  APPEALS. 


SECTION  I. 

In  what  cases  Appeals  may  be  made. 

The  Court  of  Appeals,  as  at  present  constituted, 
possesses  an  appeUate  jurisdiction  only.  It  has  pow- 
er only  to  review  the  judgments  of  inferior  courts. 

Appeals  can  only  be  taken  from  actual  determina- 
tions made  at  a  general  term  by  the  Supreme  Court, 
or  by  the  superior  court  of  the  city  of  New  York, 
or  of  the  court  of  common  pleas  of  the  city  and 
county  of  New  York,  in  the  following  cases: 

1.  In  a  judgment  in  an  action  commenced  there- 
in, or  brought  there  from  another  court;  and  upon 
the  appeal  from  such  judgment  to  review  any  inter- 
mediate order  involving  the  merits,  and  necessarily 
affecting  the  judgment. 

2.  In  a  final  order  affecting  a  substantial  right, 
made  in  a  special  proceeding,  or  upon  a  summary 
application  in  an  action  after  judgment.  (Code,  §  11, 
subs.  1,2) 

The  first  subdivision  embraces  appeals  from  judg- 
ments in  actions.  The  judgment  appealed  from 
must  be  one  pronounced  at  a  general  term  of  the 

19 


290  IN  WHAT  CASES  APPEALS  MAY  BE   MADE. 

Supreme  Court,  superior  court,  or  court  of  common 
pleas  of  the  city  of  New  York,  and  must  finally 
determine  the  action. 

A  judgment  entered  under  the  direction  of  a 
single  justice  of  the  Supreme  Court  cannot  be  ap- 
pealed into  the  Court  of  Appeals.  It  must  first  go 
to  the  general  term  Grade  v.  Freeland  and  others, 
1  Com.  Rep.,  228.  Hence,  no  appeal  lies  to  this 
court  from  an  order  of  the  Supreme  Court  granting 
a  new  trial  upon  a  case  or  bill  of  exceptions,  where 
the  decision  was  made  after  the  Code  of  Procedure 
took  effect.  Tilly  v.  Philips,  1  Com.  Rep.,  610. 
Otherwise,  where  the  Supreme  Court  deny  a  new 
trial,  this  being  a  final  determination  of  the  action. 
Ibid.  So,  no  appeal  lies  to  review  an  interlocutory- 
order  of  the  Supreme  Court  dissolving  a  temporary 
injunction.  Selden  v.  Vermilya,  1  Com.  Rep.,  534.  Van 
De  Water  v.  Kelsey,  3  How.  Pr.  Rep.,  338.  Nor  from 
any  order,  the  granting  or  refusing  of  which  rested 
in  the  discretion  of  the  inferior  court.  Sherman  and 
others  v.  Felt  and  others,  3  How.  Pr.  Rep.,  425.  So, 
generally,  appeals  will  not  lie  upon  mere  questions 
of  costs.  Sherman  and  Bachcldor  v.  Daggett  and  Green, 
3  How.  Pr.  Rep ,  426. 

The  Court  of  Appeals  will  not  entertain  an  appeal 
from  a  decision  of  the  Supreme  Court,  upon  a  case 
made  at  the  circuit.  There  must  be  a  special  ver- 
dict found  or  exceptions  taken  at  the  trial.  Living- 
ston V.  Radcliff,  3  How.  Pr.  Rep.,  417  ;  li  right  v.  Doug- 
lass, ibid,  418;  Sturgis  v.  Merry,  ibid,  418;  King  v. 
Dennis,  ibid,  419.  (a.) 

(a.)  In  the  case  of  Liii'igslonv.  linddiff  above  cited,  the  Court  of  Appeals 
doubtless  intended  to  distinguish  between  a  cnic  and  bi/Z  of  exceptions,  as  they 
existed  under  tlie  former  practice.     But  as  the  term  "  Bill  of  Exceptions"  ia 


APPEALS    FROM    ORDERS.  291 

Where  exceptions  are  taken  at  the  trial,  the  party- 
taking  them  may  make  a  "  case"  incorporating  in  it 
the  exceptions,  and  it  may  be  called  case  or  excep- 
tions.    Code,  §  281,  suh.  2, 

So,  it  would  seem,  this  court  will  not  entertain 
^n  appeal  from  a  judgment  of  the  Supreme  Court 
reversing  a  judgment  of  a  county  court  for  error  ap- 
pearing in  the  bill  of  exceptions.  Fargo  v.  Brown,  3 
How.  Pr.  Rep.,  294. 

So  an  order,  decree  or  judgment  of  the  Supreme 
Court,  which  contained  a  provision  for  a  reference 
of  certain  matters,  and  that  all  further  questions  and 
directions  be  reserved  until  the  coming  in  of  the  re- 
port of  the  referee,  was  held  not  to  be  an  appeala- 
ble order,  decree  or  judgment,  and  that  it  was  not 
such  a  final  determination  as  was  contemplated  by 
§  11  of  the  Code.  Harris  v.  Clark,  4  How.  Pr.  R.,  78. 

Judgments,  however,  of  the  Supreme  Court  in 
cases  arising  in  a  justice's  court,  cannot  be  reviewed 
upon  appeal,  in  the  Court  of  Appeals.  Code,  §11. 
The  judgment  of  the  Supreme  Court  in  such  cases 
is  final. 

Orders'] — The  orders  from  which  appeals  are  al- 
lowed, must  be  such  as  are  final,  and   affect  a  sub- 

ao  longer  used  in  the  Code,  and  "  case'' being  substituted,  {Code,  §268,)  the 
courts  could  not  have  intended  to  deny  the  right  of  ajipeal  upon  a  decision  of  the 
Supreme  Court,  upon  a  "case"  made  under  the  Code.  It  will  be  seen  that, 
though  exceptions  to  a  decision  on  a  matter  of  law  arising  upon  the  trial  may 
be  taken  as  formerly,  the  party  taking  them  must  present  them  for  review  upon 
-"a  ca  e,  con'aininn,  so  much  of  ti.e  ei'idence  o«  may  be  material  to  the  question  to  be 
raised."  Code,  §  268.  This,  under  the  former  practice  would  be  a  bill  of  ex- 
ceptions, and  not  a  case.  It  is  not  difficult  to  distinguish  between  a  case  and 
•exceptions,  and  although  the  legislature  have  used  the  term  "  case"  as  appli- 
cable to  exceptions,  the  Court  of  Appeals  may  review  a  decision  of  the  Su- 
preme Court  upon  a  "case,"  where  the  case  contains  exceptions  to  a  decision 
on  a  matter  of  law  arising  upon  the  trial.  If  the  decision  of  the  Court  of  Ap- 
peals is  to  receive  a  literal  construction,  it  would  soon  be  out  of  business,  as 
^cisions  of  the  circuit  judge  can  only  be  reviewed  upon  a  "case,"  so  called. 


292  APPEALS    FROM    ORDERS. 

stantial  right,  and  are  made  in  a  special  proceeding 
or  upon  a  summary  application  in  an  action  after 
judgment. 

Tiie  numerous  class  of  orders,  commonly  denom- 
inated "  interlocutory  orders,"  and  which  are  chiefly 
confined  to  the  practice  of  the  court,  and  are  in  aid 
of  the  proceedings  in  the  action,  are  not  the  subject 
of  review  in  this  court  Hence,  no  appeal  lies,  from 
an  order  of  the  Supreme  Court,  granting  or  refusing 
to  grant  an  injunction,  or  from  an  order  to  hold  a 
defendant  to  bail,  and  the  like.  The  order  appealed 
from,  must  be  one,  made  at  a  general  term  of  the 
Supreme  Court ;  an  order  made  at  a  special  term  or 
by  a  single  judge,  at  chambers  or  otherwise,  being 
not  appealable.  So,  with  orders  the  granting  or  re- 
fusing of  which  are  discretionary  with  the  court, 
cannot  be  reviewed  upon  appeal.  Sherman  y.  Felt,  3^ 
Howard's  Pr.  Rep.  42G.  Vanderwater  v.  Kelsey,  1  Com. 
Rep.  533.  See  4  How.  Pr.  R.  78. 

It  is  necessary  that  the  order  appealed  from  should 
affect  a  substantial  right,  otherw^ise  the  court  Vvill  not 
entertain  it.  Hence,  an  order  granting  or  refusing 
to  grant  a  permanent  injunction,  is  an  appealable 
order.  Such  orders,  however,  are  not  ordinarily 
granted  until  judgment  in  the  action,  when  it  in 
fact  becomes  a  judgment.  Usually,  injunctions  be- 
fore trial  and  judgment  are  temporary,  to  continue 
until  the  determination  of  the  action.  From  such 
orders,  as  we  have  seen,  an  appeal  does  not  lie. 
Selden  v.  Vermihja,  1  Com.  Rrp.,  534. 

The  order  must  be  made  in  a  special  proceeding, 
or  upon  a  summary  application  in  an  action  after 
judgment. 


^«^ITHIN    WHAT    TIME    APPEAL    MUST    BE    MADE.        293 

Within  ivhat  time  appeal  must  he  mode.} — An  appeal 
to  the  Court  of  Appeals,  must  in  all  cases,  whether 
from  a  judgment  or  from  an  order,  be  madt?  within 
two  years  after  the  judgment  or  order  is  made  and 
entered,  or  the  party  prosecuting  tlie  appeal  Avill 
loose  all  right,  and  the  appeal  will  be  dismissed. 
Code,  §  331.  The  Revised  Statutes  (2  R.  S,,  493, 
§  21)  in  restricting  the  time  for  bringing  a  writ  of 
error  upon  a  judgment  or  final  determination  of  a 
couit  of  law,  to  two  yeare,  after  rendering  of  such 
judgment,  or  final  determination,  has  made  the  fol- 
lowing exceptions,  viz:  where  the  person  against 
whom  such  judgment  or  determination  is  made,  is 
at  the  time,  either  (I)  within  the  age  of  twenty-one 
years;  or  (2)  insane;  or  (3)  imprisoned  on  any 
criminal  charge,  or  in  execution  upon  some  convic- 
tion of  a  criminal  offence,  for  any  term  less  than 
for  life;  or  (4)  a  married  woman:  the  time  during 
which  such  disability  continued,  was  not  to  be 
deemed  any  portion  of  the  time  limited  for  bringing 
a  writ  of  error;  but  such  person  might  bring  such 
writ,  after  the  time  so  limited,  and  within  two 
years  after  such  disability  was  removed.  Ibid,  §  22. 
Again,  by  settion  23  of  the  same  statute,  it  was 
provided,  that  if  the  person  entitled  to  bring  such 
writ  should  die  during  the  continuance  of  any  dis- 
ability Specified  in  section  22,  his  heirs,  devisees,  ex- 
ecutors or  administrators,  entitled  by  law  to  prose- 
cute such  writ,  might  bring  the  same,  after  the  time 
limited  for  that  purpose,  and  within  two  years  after 
such  death.  But  the  existence  of  any  disability  did 
not  authorise  the  bringing  the  writ,  after  the  expira- 
tion of  five  years  from  the  time  of  rendering  the 
judgment. 


294  WHO   MAY   BRING   THE   APPEAL. 

It  has  not  been  decided  in  the  Court  of  Appeals, 
whether  this  statute  respecting  writs  of  error,  is  to 
apply  to  appeals.  By  the  very  precise  language  of 
the  Code,  {sec.  331,)  it  would  seem,  that  appeals 
must,  in  all  cases,  be  brought  within  two  years  from 
the  time  of  rendering  the  judgment,  whether  the 
disability  provided  for  in  the  Revised  Statutes,  ex- 
isted or  not.  Yet  it  is  believed,  that  the  court  will 
decide  that  the  Revised  Statutes,  in  respect  to  such 
disabilities,  continues  in  force,  notwithstanding 
writs  of  error  have  been  abolished. 

Who  may  bring  the  appeal.'] — The  appeal  may  be 
brought  by  the  party  against  whom  the  judgment 
complained  of  was  rendered.  In  casa  of  his  death, 
by  his  executors  or  administrators,  if  the  judgment 
was  to  recover  any  debt,  or  damages  only,  or  to  re- 
cover any  interest  in  lands,  declared  by  law  to  be 
personal  assets;  in  case  of  the  death  of  such  party, 
if  the  judgment  was  for  the  recovery  of  real  estate, 
or  the  possession  thereof,  or  the  title  to  real  estate 
was  determined  thereby,  the  appeal  must  be  brought 
by  the  heirs  or  devisees  of  such  deceased  party,  to 
whom  such  estate  was  devised  or  descended,  or 
might  have  descended. 

An  appeal  may  be  brought  by  any  person,  having 
an  estr.te  in  reversion  or  remainder,  in  any  real  pro- 
perty which  shall  have  been  recovered,  or  the  pos- 
session of  which  shall  have  been  recovered,  in  any 
action  relating  to  property,  brought  against  any  te- 
nant for  life,  or  for  years,  in  which  action  such  per- 
son was  not  a  party  ;  and  such  appeal  may  be  brought 
within  the  time  prescribed  by  law,  by  such  person, 
ns  well  during  the  life  time  of  such  tenant,  as  after 
his  death.  2  Rev.  Stat.  490  §  2. 


JOINDER    OF    PARTIES.  295 

Appeals,  as  now  authorised  by  the  Code  of  Proce- 
dure, are  a  substitute  for  writs  of  error,  in  actions  at 
law,  and  appeals  in  chancery,  as  they  existed  under 
the  former  practice.  Hence,  as  the  provisions  of  the 
Revised  Statutes  in  respect  to  the  persons  who  may 
prosecute  the  writ  of  error,  are  not  inconsistent  with 
the  provisions  of  the  Code,  they  apply  to  appeals 
brought  under  the  Code. 

Appeals  may  also  be  brought  by  a  party  in  whose 
favor  a  judgment  may  have  been  rendered,  upon 
which  no  execution  shall  have  been  issued,  and 
which  shall  not  have  been  in  any  way  satisfied,  in 
whole  or  in  part  \  and  after  his  death,  by  his  per- 
sonal representatives,  heirs,  or  devisees.  2.  R.  S. 
491,  §  3. 

Also,  by  the  attorney-general,  in  behalf  of  the  peo- 
ple of  this  state.     Id.  §  4. 

Also,  by  husband  and  wife,  on  a  judgment,  re- 
covered against  the  wife  dum  sola,  or  during  mar- 
riage.    Id.  §  5. 

Also,  b/  the  survivors  of  several  persons  against 
whom  judgment  has  been  obtained.     Id.  ^6. 

Joifider  of  parties.] — Where  there  are  several  per- 
sons against  whom  a  judgment  shall  have  been  re- 
covered, and  entitled  to  bring  an  appeal,  living  at 
the  time  of  bringing  vsuch  appeal,  they  must  all  join 
in  the  appeal,  (except  in  appeals  on  judgments  in 
proceedings  for  partition,)  and  if  any  are  omitted 
the  appeal  will  be  dismissed,  unless  one  or  more  of 
such  persons  be  allowed  to  proceed  separately,  by 
the  court  into  which  the  appeal  is  brought.  2  R.  S. 
491,  §7. 

Excuses  for  not  joining.] — To  th?  allegation  of  there 
being  other  persons  living  who  ought  to  join  in 


296  SERVICE    OF    RULE. 

such  appeal,  if  it  be  established  or  admitted,  the 
party  bringing  the  appeal  may  answer  by  due  proof 
on  affidavit,  that  any  of  such  persons  not  joined  are 
either  incapable  of  consenting  to  join  in  s::ch  ap- 
peal, by  reason  of  insanity  or  imbecility  of  mind, 
or  that  their  consent  could  not  be  obtained,  by  rea- 
son of  their  being  absent  out  of  the  state ;  and  if 
the  court  shall  be  satisfied  of  the  truth  of  such  an- 
swer, such  party  shall  be  allowed  to  prosecute  such 
appeal,  without  joining  such  persons,  in  the  same 
manner  as  if  they  were  joined.  {Id.  §  8.)  The  party 
prosecuting  the  appeal  may  also  answer,  that  appli- 
cation has  been  made  to  any  person  not  joined  in 
such  appeal,  to  join  therein,  and  that  they  have  re- 
fused. In  such  case,  the  court  shall  stay  farther 
proceedings  on  such  appeal,  and  on  the  motion  to 
dismiss  the  same,  until  a  rule  to  join  in  the  appeal 
shall  have  been  duly  served  upon  the  persons  so  re- 
fusing.    Id.  §  9. 

Entering  rule.] — A  rule  must  thereupon  be  entered, 
directing  the  persons  so  refusing,  to  join  in  such  ap- 
peal in  such  court,  within  such  time  as  shall  be 
prescribed  therein,  and  there  join  in  such  appeal, 
and  in  the  proceedings  thereon,  or  be  forever  pre- 
cluded from  bringing  another  appeal  on  the  same 
judgment.  Id.  §  10. 

Service  of  rule.] — A  copy  of  such  rule  must  be 
served  on  the  persons  named  therein,  at  least  ten 
days  previous  to  the  time  of  appearance  therein 
specified,  by  delivering  the  same  personally  to  them, 
if  they  can  be  found;  and  upon  such  of  them  as 
cannot  be  found,  by  leaving  the  same  at  their  last 
place  of  residence  respectively,  with  some  person 
of  proper  age.  Id.  §  11. 


MISJOINDER.  297 

Proceedings  on  default.] — If  any  person  named  in 
such  rule  do  not  appear  by  the  time  therein  specifi- 
ed, and  join  in  sucii  appeal,  upon  due  proof  of  the 
service  of  such  rule,  the  default  of  such  person  shall 
be  entered,  and  he  shall  thereby  be  forever  preclu- 
ded from  bringing  any  appeal  on  the  same  judg- 
ment. And  the  case  shall  proceed  in  the  same 
manner  as  if  sucli  person  had  been  named  in  such 
appeal,  and  in  the  proceedings  thereon.  Id.  492, 
§  13. 

Misjoinder.'] — Not  only  must  all  proper  parties  join 
in  bringing  an  appeal,  but  no  one  must  unite,  who 
has  not  been  prejudiced  by  the  judgment.  This  was 
decided  in  a  case  of  a  writ  of  error,  (17  Wen,  Rep., 
434,)  and  it  may  be  regarded  as  the  rule  in  respect 
to  appeals. 

Against  whom] — Appeals  must  be  brought  against 
the  same  person  who  was  a  party  to  the  judgment 
on  which  it  is  brought ;  or  in  case  of  his  death, 
either,  (I)  if  such  judgment  was  for  the  recovery  of 
any  debt  or  damages  only,  against  his  executors  or 
administrators;  or,  (2)  if  the  judgment  was  for  the 
recovery  of  any  interest  in  lands  declared  by  law  to 
be  personal  assets,  against  the  executors  or  admin- 
istrators of  such  deceased  party;  or  if  such  interest 
have  been  conveyed  by  the  deceased,  previous  to 
bringing  the  appeal,  then  against  the  actual  occu- 
pants thereof  under  such  conveyance.  (3.)  If  such 
judgment  was  for  the  recovery  of  real  estate,  or  the 
pos:iession  thereof,  or  in  any  action  by  which  the 
title  to  real  estate  was  determined,  the  appeal  must 
be  brought  against  the  heirs  of  such  person  to  whom 
such  real  estate  descended,  or  against  the  devisees  of 


298        PROCEEDINGS  TO  PERFECT  APPEAL. 

£Uch  estate;  or  if  conveyed  by  the  deceased,  previ- 
ous to  bringing  the  appeal,  then  against  the  actual 
occupants  thereof,  claiming  under  such  conveyance. 
2  R  S,  492,  §  19. 

What  attorney  may  bring  appeal.] — The  attorneys  and 
guardians  ad  litem  of  the  respective  parties,  in  the 
court  below,  shall  be  deemed  the  attorneys  and  guar- 
dians of  the  same  parties  respectively,  in  the  Court 
of  Appeals,  until  others  shall  be  retained  or  appoint- 
ed, and  notice  thereof  shall  be  served  on  the  adverse 
party.  Rule  4  of  Court  of  Appeals.  The  appeal  there- 
fore may  be  brought  by  the  same  or  anew  attorney. 

SECTION  11. 

Of  the  Proceedings  to  Perfect  the  Appeal. 

Notice  of  appeal.] — A  party  wishing  to  appeal,  must 
prepare  a  notice  stating  that  he  appeals  from  the 
judgment  or  order,  or  from  some  specified  part  there- 
of. The  judgment  or  order  appealed  from  must  be 
described  with  accuracy  and  certainty,  and  if  the 
whole  judgment  or  order  is  not  appealed  from,  but 
the  party  intends  to  review  only  a  part  of  it,  he  must 
specify  accurately  the  part  or  portion  of  the  judg- 
ment or  order  appealed  from.  (For  form  of  notice 
■  see  Appe?i(]ix.) 

Service.] — The  notice  of  appeal  must  be  served  on 
the  adverse  party,  or  it  may  be  served  upon  his  at- 
torney, if  the  judgment  or  order  appealed  from,  was 
entered  by  an  attorney.  It  must  also  be  served  on 
the  clerk  with  whom  the  judgment  or  order  was  en- 
tered. This  notice  may  be  served  like  other  notices 
in  actions,  as  to  which  see  post.      It  need  not  be  a 


THE  UNDERTAKING.  299 

personal  service,  but  may  be  by  mail,  or  otherwise 
as  in  the  case  of  other  notices. 

The  undertaking^ — To  render  the  appeal  eifectual 
for  any  purpose,  a  Avritten  undertaking  must  be 
executed  on  the  part  of  the  appellant,  by  at  least 
two  sureties,  to  the  effect  that  the  appellant  will 
pay  all  costs  and  damages  which  may  be  awarded 
against  him  on  the  appeal,  not  exceeding  .two  hun- 
dred and  fifty  dollars.  Or  the  appellant  may  de- 
posite  with  the  clerk,  with  whom  the  judgment  or 
order  appealed  from  was  entered,  the  sum  of  two 
hundred  and  fifty  dollars,  to  abide  the  event  of  the 
appeal. 

This  iindertaking  or  deposite,  or  both,  may  be 
waived  by  the  written  consent  on  the  part  of  the 
respondent.   {Code,  §  334.) 

The  undertaking  above  mentioned  will  be  suffi- 
cient to  perfect  the  appeal  in  all  cases  where  a  stay 
of  execution  upon  the  judgment  is  not  desired ;  or 
where  the  judgment  appealed  from  does  not  direct 
the  payment  of  money,  or  some  act  or  thing  to  be 
done  by  the  party  against  whom  the  judgment  or 
order  is  made.     If,  however,  the  appeal  be  from  a 
judgment  directing  the  payment  of  money,  it  will 
not  stay  the  execution  of  the  judgment,  unless,   in 
addition  to  the  undertaking  to  pay  costs,  {see  Langley 
Land  Langley  v.    Warner,  1  Com.  Rpp.,  606)  a  written 
undertaking  be  executed  on  the  part  of  the  appel- 
lant, by  at  least  two  sureties,  to  the  effect  that  if 
the. judgment  appealed  from,  or  any  part  thereof, 
be   affirmed,   the   appellant  will    pay  the   amount 
directed  to  be  paid  by  the  judgment,  or  the  part  of 
such  amount  as  to  which  the  judgment  shall  be 
affirmed,  if  it   be  affirmed  only  in  part,   and  all 


n 


00  THE   UNDERTAKING. 


damages  which  shall  be  awarded   against  the  ap» 
peJlant,  upon  the  appeal.   {Code,  §  335.) 

Both  the  undertakings  may  be  'embraced  in  one, 
and  it  is  not  necessary  that  they  should  be  separate. 

If  the  judgment  appealed  from  direct  the  assign- 
ment or  delivery  of  documents  or  personal  property, 
the  execution  of  the  judgment  will  not  be  stayed 
by  the  appeal,  unless  (in  addition  to  giving  the 
undertaking  to  pay  costs)  the  things  required  to  be 
assigned  or  delivered,  be  brought  into  court,  or  pla- 
ced in  the  custody  of  such  officer  or  receiver  as  the 
court  shall  direct,  or  unless  an  undertaking  be  en- 
tered into  on  the  part  of  the  appellant,  by  at  least 
two  sureties,  and  in  such  amount  as  the  court  or 
judge  thereof,  or  county  judge  shall  direct,  to  the 
effect  that  the  appellant  will  obey  the  order  of  the 
appellate  court  upon  the  appeal.  Code,  §336. 

If  the  judgment  appealed  from  direct  the  execu- 
tion of  a  conveyance  or  other  instrument,  the  exe- 
cution of  the  judgment  will  not  be  stayed  by  the 
appeal,  until  the  instrument  shall  have  been  execu- 
ted, and  deposited  with  the  clerk,  with  whom  the 
judgment  is  entered,  to  abide  the  judgment  of  the 
appellate  court.   Code,  §337. 

If  the  judgment  appealed  from  direct  the  sale  or 
delivery  of  possession  of  real  property,  the  execu- 
tion of  the  judgment  will  not  be  stayed,  unless  a 
written  undertaking  be  executed  on  the  part  of  the 
appellant,  with  two  sureties,  to  the  effect  that  durii?g 
th(»  possession  of  such  property  by  the  appellant,  he 
will  not  commit,  or  suffer  to  be  cori;mitted,  any 
waste  thereon,  and  that  if  the  judgment  be  affirm- 
ed, he  will  pay  the  value  of  the  use  and  occupation 


THE   UNDERTAKING.  301 

of  the  property,  from  the  time  of  the  appeal  until 
the  delivery  of  ppssession  thereof,  pursuant  to  the 
judgment,  not  exceeding  a  sum  to  be  fixed  by  a 
judge  of  the  ccurt,  by  which  the  judgment  was 
rendered,  and  which  mnst  be  specified  in  the  un- 
dertaking. When  the  judgment  is  for  the  s  le  of 
mortgaged  premises,  and  the  payment  of  a  defi- 
ciency arising  upon  the  sale,  the  undertaking  must 
also  provide  for  the  payment  of  such  deficiency. 
Code,  §  338. 

In  all  cases  of  appeal,  there  must  be  an  undertaking 
iopay  costs,  in  addition  to  any  or  either  of  the  other 
undertakings,  as  above  mentioned.  Langley  and  Lang- 
ley  vs.  Warner,  1  Com.  Rep.  606.  But  all  the  under- 
takings required  to  make  the  appeal  effectual,  or  to 
suspend  the  execution  of  the  judgment  appealed 
from,  may  be  embraced  in  one  instrument,  and  they 
need  not  be  separate.  They  may,  however,  be  in 
sepLirate  instruments,  at  the  option  of  the  appellant. 
Code,  §  340. 

It  is  not  necessary  for  the  appellant  to  execute  the 
undertaking.  It  will  be  sufficient  if  it  is  executed 
by  two  sureties,  without  the  appellant. 

The  undertaking  need  not  be  approved. 

In  cases  of  appeal  not  provided  for  in  sections 
335,  336,  337,  338  and  339,  of  the  Code,  the  perfect- 
ing an  appeal  by  giving  an  undertaking,  on  the  part 
of  the  appellant,  executed  by  at  least  two  sureties, 
to  the  effect  that  the  appellant  will  pay  all  costs  and 
damages  which  may  be  awarded  against  him  on  the 
appeal,  not  exceeding  two  hundred  and  fifty  dol- 
lars; or  by  depositing  that  sum  with  the  clerk 
with  whom  the  judgment  or  onler  was  entered,  to 


302  THE   UNDERTAKING. 

abide  the  event  of  the  appeal,  will  stay  all  proceed- 
ings in  the  court  below,  upon  the  judgment  appeal- 
ed from,  except  that  where  it  directs  the  sale  of 
perishable  property,  the  court  below  may  order  the 
property  to  be  sold,  and  the  proceeds  thereof  to  be 
deposited  or  invested,  to  abide  the  judgment  of  the 
appellate  court    Code,  §  342. 

Where  a  sum  to  be  inserted  in  the  undertaking, 
is  to  be  fixed  by  a  judge,  as  in  the  case  of  an  appeal 
from  a  judgn  ent,  directing  the  sale  or  delivery  of 
possession  of  real  property,  the  judge  may  ascertain 
the  same  by  a  reference,  or  by  an  affidavit,  or  other- 
wise. 

Upon  the  appeal  being  perfected,  that  is,  upon 
the  service  of  the  notice  of  appeal  and  the  execu- 
tion of  the  appropriate  undertaking,  as  provided  by 
law,  it  stays  all  further  proceedings  in  the  court  be- 
low, upon  the  judgment  appealed  from,  or  upon  the 
matter  embraced  therein;  but  the  court  below  may 
proceed  upon  any  other  matter  included  in  the  ac- 
tion, and  not  affected  by  the  judgment  appealed 
from.  Code,  §  339.  (For  form  of  undertaking,  see 
Appendix) 

Ajjidav it  annexed  to  undertaking.] — The  undertaking 
must  be  accompanied  by  an  affidavit  of  the  sureties, 
that  they  are  each  worth  double  the  amount  spe- 
cified therein,  otherwise  the  undertaking  will  be  of 
no  effect,  {Code  §  341,)  and  the  appeal  will  not  stay 
the  proceedings  in  the  court  below,  upon  the  judg- 
ment appealed.  And  it  would  seem  that  the  sureties 
must  be  householders  or  freeholders  in  this  state,  as 
they  are  required  to  justify  upon  exception  in  the 
same  manner  as  bail  taken  upon  the  arrest  of  a  de- 


SERVING    COPY    UNDERTAKING.  303 

fendant.  It  is  unnecessary,  however,  to  state  in  the 
affidavit,  that  the  sureties  are  householders  or  free- 
holders. But  it  will  be  sufficient  if  tfiey  swear  that 
that  they  are  each  worth  double  the  amount  speci- 
fied in  the  undertaking-. 

Serving  copy  undertaking.'] — At  the  time  of  serving 
the  notice  of  appeal,  a  copy  of  the  undertaking,  in- 
cludins:  the  names  and  residence  of  the  sureties, 
must  also  be  served  on  the  adverse  party,  unless  the 
appellant  makes  a  deposite  of  money  instead  of  ex- 
ecuting and  undertaking  for  the  payment  of  costs. 
The  copy  undertaking  is  served  in  the  same  man- 
ner as  notices  and  other  papers  in  the  action,  and 
may  be  upon  the  adverse  party  or  upon  his  attorney 
if  he  have  one. 

Excepting  to  sureties.] — Within  ten  days  after  receiv- 
ing notice  of  the  appeal  and  a  copy  of  the  underta- 
king, the  respondent,  if  he  is  not  satisfied  with  the 
sufficiency  of  the  sureties,  may  except  thereto.  For 
this  purpose  he  must  serve  upon  the  appellant's  at- 
torney, a  Avritten  notice  that  he  excepts  to  the  suffi- 
ciency of  the  sureties.  If  the  -respondent  omits  to 
give  this  notice,  until  after  ten  days  from  the  re- 
ceipt of  the  copy  undertaking  and  notice  of  appeal, 
he  will  waive  his  right  to  require  the  sureties  to 
justify. 

Sureties  justifying.] — The  appellant's  attorney,  hav- 
ing received  notice  of  exception  to  the  sufficiency 
of  the  sureties,  he  must  see  that  they  justify,  and  if 
he  fail  to  do  so,  and  other  sureties  are  not  put  in, 
the  appeal  will  be  regarded  as  if  no  undertaking  had 
been  given.  Cb£/e§34l.  Within  ten  days,  next  suc- 
ceeding the  receipt  of  notice  of  exception,  the  sure- 
ties must  justify  before  a  judge  of  the  court  below,  or 


304  OTHER  SURETIES. 

before  a  county  judge.  For  this  purpose  a  notice 
must  be  served  on  the  respondent's  attorney,  at  least 
five  days  before  the  time  specified  therein  when  the 
sureties  will  justify,  stating  the  time,  place  and  name 
of  the  judge  before  whom  the  sureties  will  justify. 

Sureties  in  an  undertaking  given  upon  an  appeal, 
cannot  justify  before  a  justice  of  the  peace,  as  in  case 
of  bail  given  upon  the  arrest  of  a  defendant.  Code 
§  341. 

Other  sureties.'] — Instead  of  causing  the  sureties  al- 
ready given  to  justify,  the  appellant  may  within  the 
same  time,  (i.  e.  ten  days  after  notice  of  the  excep- 
tion,) give  a  written  notice  to  the  respondent's  at- 
torney, that  oi/^er  sureties,  (whose  places  of  residence 
and  occupation  must  be  stated  in  the  notice,)  will 
in  like  manner  justify  before  the  judge.  The  notice 
must  specify  the  time,  place,  and  name  of  the  judge 
before  whom  the  new  sureties  will  justify,  and  must 
be  served  at  least  ^ye  days  before  the  time  mention- 
ed in  the  notice, 

In  case  the  new  sureties  justify,  a  new  undertak- 
ing must  be  executed,  in  the  form  and  to  the  effect 
prescribed  by  law  for  the  first  undertaking,  and  the 
new  sureties  must  justify  in  the  same  manner  as  is 
required  in  the  case  of  tlie  first  sureties.  ^ 

Marnier  of  justifying.] — At  the  time  and  place  spec- 
ified in  the  notice,  each  of  the  sureties  must  attend 
before  the  judge,  who  must  administer  to  the  sure- 
ties an  oath  that  they  will  truly  answer  all  questions 
that  may  be  put  to  them  touching  their  property 
and  sufficiency  as  sureties.  The  respondent's 
attorney  may  then  examine  the  sureties  in  such 
manner  as  the  judge  may  think  proper.  If  required 
by  the  respondent's  attorney,    the  examination  of 


TRANSMITTING    JUDGMENT  ROLL.  805 

the    sureties   must    be    reduced   to  writing  by  the 
judge,  and  subscribed  by  the  sureties. 

If  the  judge  finds  the  sureties  sufficient,  he  must 
annex  their  examination,  (if  the  same  shall  have 
been  reduced  to  writing,)  to  the  undertaking,  and 
endorse  upon  the  undertaking  an  allowance  of  the 
sufficiency  of  the  sureties. 

The  qualification  of  sureties  and  the  manner  of 
justifying  is  the  same  as  in  case  of  bail  taken  on  ar- 
rest. Code,  §  341. 

Filing  undertaking^ — The  undertaking  must  be  fil- 
ed with  the  clerk,  with  whom  the  judgment  or  order 
appealed  from  was  entered.  Code,  §  343. 

SECTION  III. 

Of  Transmitting  Judgment  Roll,  or  Order  Ap- 
pealed FROM,  to  the  Court  of  Appeals. 

Upon  the  appeal  being  perfected,  by  the  service  of 
the  notice  of  appeal  and  a  copy  of  the  undertaking, 
the  judgment  roll  or  order  must  be  transmitted  to 
the  Court  of  Appeals.  The  clerk  of  the  court  where 
the  judgment  or  order  appealed  from  is  entered,  is 
required,  upon  the  application  and  at  the  expense 
of  the  appellant,  forthwith  to  transmit  to  the  appel- 
late court,  a  certified  copy  of  the  notice  of  appeal 
and  of  the  judgment  roll.  Code  §  328.  In  case  of  an 
appeal  from  a  judgment,  the  return  of  the  clerk 
need  consist  of  nothing  more  than  a  certified  copy 
of  the  notice  of  appeal  and  of  the  judgment  roll. 
Court  of  Appeals,  Rule  1 .  Where  the  appeal  is  from 
an  order,  the  return  of  the  clerk  must  consist  of  a 
•certified  copy  of  the   notice   of  appeal  of  the  order 

20 


306  OBTAINING    FURTHER    RETURN. 

appealed  from,  and  of  the  papers  on  which  the  court 
below  acted  in  making  the  order.  Id. 

When  transmitted^ — The  appellant  must  cause  the 
proper  return  to  be  made  and  filed  with  the  clerk  of 
the  Court  of  Appeals,  within  twenty  days  after  the 
appeal  is  perfected.  Rule  2.  If  the  appellant  fail 
to  do  so,  he  will  be  deemed  to  have  waived  the  ap- 
peal, and  the  respondent  may  file  an  affidavit,  show- 
ing when  the  appeal  was  perfected,  and  a  certificate 
of  the  clerk  of  the  Court  of  Appeals,  that  no  return 
has  been  filed,  and  enter  an  order  of  course,  without 
notice  to  the  appellant,  dismissing  the  appeal  with 
costs,  for  want  of  prosecution.  This  order  is  entered 
with  the  clerk  of  the  Court  of  Appeals.  Rule  2. 

Upon  the  appeal  being  dismissed,  the  court  below 
may  proceed,  as  though  there  had  been  no  appeal. 
Id. 

The  time  for  making  the  return,  however,  may  be 
enlarged  by  the  Court  of  Appeals,  or  by  either  of 
the  judges  thereof,  upon  sufficient  cause  being 
shown.  Rule  C.  of  Ap.  18. 

Obtaining  further  return.] — If  the  return  made  by  the 
clerk  of  the  court  below,  is  defective,  either  party  may 
apply  to  one  of  the  judges  of  the  Court  of  Appeals  for 
an  order  that  the  clerk  make  a  further  return,  with- 
out delay.  The  application  for  this  order  must  be 
founded  on  an  affidavit,  specifying  the  delects  in  the 
return  already  made,  and  is  made  ex  parte,  no  notice 
of  the  application  to  the  adverse  party  being  neces- 
sary. 

The  order  should  also  state  the  defects  in  the  first 
return,  and  must  be  served  upon  the  clerk  of  the 
court  below. 


MAKING    CASE.  307 


SECTION  IV. 
Of  Preparing  the  Appeal  for  Argument. 

Making  case.] — Afler  the  return  of  the  clerk  has 
been  filed,  a  case  must  b.;  prepared  by  the  appel- 
lant, and  printed  for  the  use  of  the  court.  The  case 
must  consist  of  a  copy  of  the  return  of  the  clerk, 
and  the  reasons  of  the  court  below  for  its  judgment, 
if  the  same  can  be  procured.  Rule  5.  If  the  case  is 
voluminous,  an  index  of  the  pleadings,  exhibits, 
depositions  and  other  principal  matters  must  be 
added.  Id.  The  points  intended  to  be  relied  on,  in 
argument,  with  reference  to  the  authorities  in  sup- 
port of  the  same  must  also  be  prepared  and  printed. 
In  cases  where  it  is  necessary  for  the  court  to  go 
into  an  extended  examination  of  evidence,  each 
party  must  briefly  state  upon  his  printed  points  the 
leading  facts  which  he  deems  established,  with  a 
reference  to  the  folios  where  the  evidence  of  such 
facts  may  be  found.  Rule  10.  It  is  the  duty  of  the 
appellant  in  all  cases  to  make  up  the  case,  and  fur- 
nish the  copies,  and  the  respondent  has  no  right  to 
make  it  up. 

Printing  case.] — The  case  and  points,  and  all  other 
papers  furnished  to  the  court  in  calendar  causes, 
m.ust  be  printed  on  white  writing  paper,  with  a  mar- 
gin on  the  outer  edge  of  the  leaf,  not  less  than  one 
and  a  half  inch  wide.  The  printed  pnge  exclusive 
of  any  marginal  note  or  reference,  must  be  seven 
inches  long,  and  three  and  a  half  inches  wide.  The 
case  must   be  folioed,   numbering   from   the  com- 


308  SERVING    CASE. 

mencement  to  the  end  of  the  case.  The  numbers 
of  the  folios  must  be  printed  on  the  outer  margin  of 
the  case.  Rule  6. 

Serving  case.] — Within  forty  days  after  the  appeal 
is  perfected,  the  appellant  must  serve  three  copies 
of  the  printed  case,  on  the  attorney  for  the  respon- 
dent. If  he  fail  to  do  so,  he  will  be  deemed  to  have 
waived  the  appeal.  And  the  respondent  on  filing 
an  affidavit  proving  the  default,  may  enter  an  order 
with  the  clerk,  dismissing  the  appeal  for  want  of 
prosecution  with  costs.  Rule  7.  The  time  for  serv- 
ing the  printed  case  may  be  enlarged  by  a  judge  of 
the  Court  of  Appeals,  upon  an  ex  parte  application, 
upon  an  affidavit  stating  the  reasons  therefor.  Rule 
18.  Upon  the  appeal  being  dismissed  for  the  non- 
service  of  the  printed  case,  the  court  below  may 
proceed  .upon  the  judgment  appealed  from,  as 
though  there  had  been  no  appeal. 

Notice  of  argument.] — Either  party  may  give  to  the 
other  notice  of  the  argument  of  the  appeal.  This 
notice  must  be  served  eight  days  before  the  first  day 
of  the  term  at  which  it  is  intended  to  bring  on  the 
argument,  and  must  specify  the  time  and  place 
when  and  where  the  appeal  will  be  heard.  The 
appeal  may  be  noticed  for  argument,  as  soon  as  the 
case  is  printed  and  served,  for  any  term  of  the  court 
wherever  held.  It  is  not  confined  to  the  judicial 
district  in  which  the  action  originated.     Rule  8. 

Note  of  issue] — The  party  noticing  the  appeal  for 
argument,  must  furnish  to  the  clerk  of  the  court  a 
copy  of  the  notice  of  argument,  specifying  in  it  the 
judicial  district  in  which  the  cause  originated.  It 
must  be  famished  eight  days  before  the  first  day  of 
the  term.     Rule  8. 


ARGUMENT.  309 

flaking  up  calendar.'] — The  calendar  of  appeals  for 
argument  is  made  up  by  the  clerk  of  the  court,  and 
printed.  The  causes  are  arranged  in  the  order  in 
which  the  returns  are  filed,  specifying  the  judicial 
district  in  which  the  causes  originated  respectively. 

The  calendar  is  printed  in  the  same  manner  as 
cases  and  points  are  directed  to  be  printed. 

Argument.'] — When  the  cause  is  reached  on  the 
calendar  and  called  on  for  argument,  the  appellant 
must  furnish  a  printed  copy  of  the  case  to  each  of 
the  judges  of  the  court,  and  must  deliver  five  other 
copies  to  the  clerk  of  the  court.  Each  party  must 
at  the  same  time  furnish  to  each  of  the  judges  a 
printed  copy  of  the  points  on  which  he  intends  to 
rely,  with  a  reference  to  the  authorities  which  he 
intends  to  cite ;  and  must  also  deliver  five  other  co- 
pies to  the  clerk  of  the  court,  and  three  copies  to 
the  counsel  of  the  adverse  party.  If  the  reasons  of 
the  court  below  for  its  judgment  are  not  annexed  to 
the  cases  delivered  to  the  court,  the  cause  will  not 
be  heard,  unless  it  appear  by  affidavit  that  applica- 
tion has  been  made  for  such  reasons,  and  that  the 
same  could  not  be  procured.     3  Hill^  630. 

The  counsel  for  the  appellant  opens  the  argument; 
the  counsel  for  the  respondent  replies,  and  the  coun- 
sel for  the  appellant  closes:  Only  one  counsel  will 
be  heard  on  each  side,  unless  the  court  otherwise 
direct.    Rule  1 1 . 

The  court  will  not  hear  an  extended  discussion 
upon  any  mere  question  of  fact.     Rule  10. 

An  ex  parte  argument  either  for  affirmance  or  rever- 
sal, will  not  be  heard.  But  the  party  who  has  no- 
ticed the  cause  and  placed  it  on  the  calendar  for 


310  ARGUMENT. 

argument,  may  take  judgement  of  affirmance  or  re- 
versal, as  the  case  may  be,  if  the  other  party  ne- 
glects to  appear  and  argue  the  cause,  or  neglects  to 
furnish  to  the  court  and  deliver  to  the  clerk  the 
printed  copies  of  the  case  and  points.     Rule  11. 

But  where  a  decree  or  order  is  affirmed  or  revers- 
ed by  the  default  of  either  party,  the  remittitur  will 
not  be  sent  to  the  court  below,  (unless  the  court  shall 
otherwise  direct,)  until  ten  days  after  notice  of  the 
affirmance  or  reversal  shall  have  been  served  on  the 
attorney  of  the  party  in  default.  And  an  affidavit 
or  the  written  admission  of  the  attorney  on  whom 
such  notice  was  served,  of  the  service,  must  be  fur- 
nished to  the  clerk,  before  he  is  authorized  to  send 
the  remittitur  to  the  court  below.  Rule  17. 

A  judgment  of  allirmance  or  reversal  granted  by 
default,  may  be  set  aside,  and  the  default  opened  by 
the  court,  on  motion,  and  sufficient  excuse  shown, 
at  any  time  before  the  remittitur  is  actually  sent 
down  to  the  court  below.  And  a  judge  of  the  court 
may  grant  a  stay  of  proceedings  to  enable  the  party 
to  make  the  motion.  Rule  18. 

The  motion  is  founded  on  affidavit,  and  at  least 
eight  days  notice  to  the  adverse  party. 

The  motion  days  in  this  court,  are  the  morning 
of  the  firbt  day  of  any  term,  and  the  morning  of 
each  following  Tuesday  and  Friday,  during  the  term, 
before  taking  up  the  calendar.  Motions  cannot  be 
made  at  any  other  times. 

Cases  may  be  submitted  to  the  court  on  printed 
arguments.  The  same  number  must  be  furnished 
to  the  judges  and  delivered  to  the  clerk,  as  of  the 
case  and  points.  Rule  14. 


TUDGMENT    AND    REMITTITUR.  -311 


SECTION  V. 

Of  the  Judgment  and  Remittitur,  and  the  Proceed- 
ings THEREON  IN  THE  CoURT  BELOW. 

Decision.] — The  decision  of  the  court  is  to  reverse, 
affirm,  or  modify  the  judgment  or  order  appealed 
from,  in  whole  or  in  part.  Code,  §  12.  The  con- 
currence of  five  judges  is  necessary  to  pronounce  a 
judgment.  If  five  do  not  concur,  the  judgment  or 
order  appealed  from  is  affirmed,  unless  the  court 
order  a  re-hearing.  Such  a  mere  formal  affirmance, 
although  it  leaves  the  law  of  the  Supreme  Court 
undisturhed,  cannot  be  considered  ag  settling  the 
law  in  this  court,  except  so  far  as  it  relates  to  the 
particular  case  in  which  the  decision  is  made.  Per 
Walworth,  Chancellor,  5  Wend  Rep  372. 

Remittitur  J] — After  the  decision  of  the  court  has 
been  pronounced,  it  is  remitted  to  the  court  below, 
to  be  enforced  according  to  law.  The  remittitur 
contains  a  copy  of  the  judgment  of  the  court,  and 
the  return  made  by  the  clerk  of  the  court  below. 
It  is  usually  drawn  by  the  clerk,  and  is  required  to 
be  signed  and  sealed  by  him.  Rule  16. 

The  remittitur  may  be  filed  at  any  time  in  term 
or  vacation.  It  is  sent  to,  and  must  be  filed  in,  the 
office  of  the  clerk,  when  the  judgment  or  order 
appealed  from  was  entered. 

Where  a  decree  or  order  is  affirmed  or  reversed 
by  the  default  of  either  party,  the  remittitur  will  not 
be  sent  to  the  court  below,  unless  the  court  otherwise 
direct  until  ten  days  after  notice  of  the  affirmance 
or  reversal,  has  been  served  on  the  attorney  of  the 


312  COSTS, 

party  in  default.  Rule  17.  And  in  such  a  case, 
before  the  remittitur  will  be  sent  down,  the  service 
of  the  notice  must  be  proved  to  the  clerk,  by  affi- 
davit, or  the  written  admission  of  the  attorney  on 
whom  it  was  served. 

(7o5l5]_Where  the  judgment  appealed  from  is 
affirmed  in  part  and  reversed  in  part,  or  where  a  new 
trial  is  granted,  the  costs  of  the  appeal  are  in  the 
discretion  of  the  court.  It  is  usual  in  this  court  not 
to  allow  costs  where  a  new  trial  is  granted. 

When  costs  are  allowed,  either  by  law  or  are  given 
by  the  court,  they  are  as  follows : 

To  the  prevailing  party,  before  argument,  twenty- 
five  dollars;  for  argument,  fifty  dollars;  for  every 
term  of  the  court  at  which  the  cause  is  necessarily 
on  the  calendar,  and  not  reached,  or  postponed,  ex- 
cluding that  at  which  it  is  heard,  ten  dollars.  In 
addition  to  these  items  of  costs,  the  prevailing  party 
is  allowed  the  necessary  disbursements  and  fees  of 
officers.  The  disbursements  must  be  stated  in  de- 
tail, and  must  be  verified  by  affidavit,  which  must 
be  filed.  Two  days  notice  of  the  application  to  the 
clerk,  to  insert  in  the  entry  of  judgment  the  sum  of 
tlie  charges  for  costs,  and  necessary  disbursements 
and  fees  of  officers,  must  be  given  to  the  adverse 
party.  The  costs  are  certified  by  the  clerk,  and  in- 
serted by  him  in  the  entry  of  judgment. 

Judgment  is  thereupon  entered  in  the  Supreme 
Court,  in  accordance  with  the  decision  of  this  court. 
The  entry  of  judgment  with  the  remittitur  must  be 
annexed  to  the  judgment  roll,  and  the  whole  be- 
comes one  record  of  the  Supreme  Court.  For  form 
of  judgment  upon  remittitur,  see  Appendix. 


EXECUTION.  21 S 

Execution.] — The  party  who  has  the  judgment  in 
this  court,  if  it  be  final,  may,  immediately  after 
filing  the  remittitur,  and  entry  of  judgment  there- 
upon in  the  Supreme  Court,  issue  an  executicn  to 
collect  or  enforce  the  same. 

The  execution  recites  the  judgment  in  the  Supreme 
Court  appealed  from,  and  also  the  decision  and 
judgment  of  this  court,  and  directs  the  sheriff'  or 
other  officer  to  satisfy  the  amount  of  the  judgment 
appealed  from,  and  also  the  costs  and  damages 
awarded  by  this  court  upon  the  appeal,  out  of  the 
property  of  the  adverse  party,  as  in  ordinary  cases. 

For  form  of  execution,  see  Appendix. 


PART  III. 


OF  PROCEEDINGS  IN  SPECIAL  CASES. 


CHAPTER  I. 

OF  ACTION  FOR  FORECLOSURE  OF  MORTGAGE  AND 

SALE  OF  PREMISES. 

Previous  to  the  adoption  of  the  Constitution  of 
1846,  the  Court  of  Ciiancery  possessed  the  sole 
power  of  decreeing  the  foreclosure  of  a  mortgage  and 
a  sale  of  the  mortgaged  premises.  A  court  of  law 
had  no  jurisdiction  in  such  cases,  and  the  only 
modes  of  obtaining  satisfaction  of  a  mortgage  by 
the  sale  of  the  mortgaged  premises,  was  by  a  bill  in 
chancery,  or  a  foreclosure  under  the  statute. 

But  in  the  abolition  of  the  Court  of  Chancery,  the 
powers  which  had  been  exercised  by  the  Chancellor, 
were  transferred  to  the  justices  of  the  Supreme 
Court,  and  in  some  instances  to  the  county  judges. 

The  Code  of  Procedure  destroys  all  distinctions 
between  actions  at  law  and  suits  in  equity,  {Code,  § 
69,)  and  hence  there  is  now  but  one  form  of  action. 


gl6  OBJECT    OF    ACTION. 

SECTION  I. 

Object  of  the  Action,  and  how  commenced. 

The  object  of  instituting  an  action,  for  the  fore- 
closure of  a  mortgage,  is  to  obtain  a  judgment  of 
sale  of  the  mortgaged  premises,  and  a  foreclosure 
of  the  equity  of  redemption  of  the  mortgagor,  and 
of  all  junior  incumbrancers  by  way  of  mortgage, 
judgment,  or  otherwise.  The  statute  (2  Riv.  Stat. 
191,  §  157,  Orig.  §  151,)  authorises  the  court,  in  ac- 
tions for  the  foreclosure  and  satisfaction  of  a  mort- 
gage, to  decree  or  direct  the  sale  of  the  mortgaged 
premises,  or  as  much  as  may  be  sufficient  to  dis- 
charge the  amount  due  on  the  mortgage,  and  the 
costs  of  the  suit. 

The  action  for  the  foreclosure  of  a  mortgage,  is 
commenced  like  all  other  actions  by  the  service  of 
a  summons.  All  the  rules  which  appertain  to  other 
actions,  in  respect  to  the  form  of  the  summons,  man- 
ner of  service  and  proceedings  to  judgment,  are  ap- 
plicable to  suits  for  the  foreclosure  of  a  mortgage. 

Parties^ — The  plaintiff,  as  in  other  actions,  must 
be  the  real  party  in  interest  and  if  he  is  not,  it  will, 
if  it  appear  from  the  complaint,  be  ground  of  demur- 
rer; otherwise  the  defendant  may  take  advantage  of 
the  defect  by  answer.  The  mortgagee  of  the  mort- 
gage, or  the  assignee  thereof,  will  in  general  be  the 
proper  plaintiff  And  Avhere  there  is  an  assignment 
of  a  part  of  the  mortgage  both  the  mortgagee  and 
assignee  must  be  plaintiffs;  so,  if  the  mortgagee  is 
dead,  his  personal  representatives  must  be  plaintiffs, 
inasmuch   as  the  mortgage  is  assets  in  their  hands, 


THE   PARTIES.  317 

and  for  purposes  of  paying  debts,  legacies  or  distri- 
bution, belongs  to  them. 

The  defendant  in  such  suit,  must  be  the  person  who 
has  the  adverse  interest,  {Code  §  118)  and  whose 
rights  and  interest  are  to  be  affected  by  the  suit. 
Hence,  the  mortgagor,  and  all  persons  who  have  an 
incumbrance  upon  the  mortgaged  premises,  by  way 
of  mortgage  or  judgment,  are  necessary  parties,  de- 
fendants. It  is  not  necessary  to  make  senior  incum- 
brancers defendants,  though  they  may  be,  where  it 
is  intended  to  satisfy  by  a  sale  all  the  liens  upon  the 
mortgaged  premises.  If  the  mortgagor  is  dead,  his 
heir  must  be  a  party  to  the  action ;  and  where  it  is 
intended  to  change  his  estate  for  the  deficiency,  it 
is  proper  to  make  his  representative  a  party  also.  So, 
the  purchaser  of  the  mortgaged  premises  is  a  neces- 
sary party,  as  he  becomes  by  the  purchase,  the  own- 
er of  the  equity  of  redemption.  And  in  some  cases 
the  purchaser  may  become  liable  for  the  deficiency, 
where  the  proceeds  of  the  sale  of  the  premises  are 
insufficient  to  pay  the  debt  and  costs  :  as,  where  such 
purchaser  has  assumed  to  pay  the  mortgage,  as  a 
part  of  the  consideration  of  the  purchase.  9  Paige, 
446;  10  Id.  595. 

In  general,  the  rules  that  heretofore  prevailed  in 
the  Court  of  Chancery  in  respect  to  the  parties  to  a 
bill  for  the  foreclosure  of  a  mortgage,  will  apply  to 
an  action  instituted  for  the  same  purpose,  under  the 
Code.  And  the  reader  is  referred  to  the  excellent 
treatise  of  Mr.  Barbour,  upon  the  practice  of  the 
Court  of  Chancery,  for  a  full  digest  of  the  rules  in 
that  court  upon  the  subject.  And  see  ante  p.  9,  Sfc. 

It  has  been  held  that  in  an  action  against  husband 


318  THE    COMPLAINT. 

and  wife,  for  the  foreclosure  of  a  mortgage  executed 
by  both,  though  upon  lands  conveyed  to  the  wife, 
there  was  no  misjoinder  of  defendants,  although  the 
mortgage  was  given  for  the  consideration  money, 
and  the  husband  had  no  interest  therein.  Conde  v. 
Shpphard,  4  How.  Pr.  R.,  75.  The  husband  stood  in 
the  relation  of  surety  for  the  deficiency,  and  might 
be  charged  in  the   judgment. 

The  summons.'] — The  summons  is  in  the  ordinary 
form  required,  where  an  application  for  the  relief 
demanded  is  necessary  to  be  made  to  the  court; 
hence,  it  must  contain  a  notice  to  the  defendant 
that  upon  his  failure  to  answer  the  complaint,  the 
plaintiff  will  apply  to  the  court  for  the  relief  de- 
manded in  the  complaint.  It  is  improper  to  state 
in  the  summons  that  the  plaintiff  will  take  judg- 
ment, for  no  judgment  in  an  action  for  the  fore- 
closure of  a  mortgage  can  be  taken,  except  upon  a 
special  application  to  the  court.  Rule  49. 

The  co?nplaint.] — The  complaint  in  an  action  for 
the  foreclosure  of  a  mortgage  must  like  other  actions 
contain  a  statement  of  the  plaintiff's  cause  of  action 
against  the  defendants,  (see  a?ite  p.  99,)  together 
with  a  demand  of  the  relief,  to  which  the  plaintiff 
supposes  himself  entitled.  Ordinarily,  it  will  be 
sufficient  to  state  in  the  complaint,  the  making  of 
the  mortgage,  its  date  and  amount,  when  and  where 
recorded,  and  a  brief  description  of  the  premises. 
If  a  bond  has  been  given  with  the  mortgage,  it  ^ 
should  also  be  briefly  set  out  in  the  complaint.  If 
junior  mortgagees  or  grantees,  or  junior  judgment 
creditors  are  made  parties,  as  they  must  be,  in  order 
to  foreclose  their  equity  of  redemption,  it  should  be 


THE    COMPLAINT.  319 

stated  that  the  interest  of  such  defendants,  is  junior 
and  subordinate  to  that  of  the  plaintiff.  And  it  will, 
in  general,  be  sufficient  to  aver  that  such  defend- 
ants have  or  claim  to  have,  some  interest  in  the 
mortgaged  premises  by  mortgage,  judgment  or 
otherwise,  but  which  the  plaintiff  alleges  is  junior 
and  subordinate  to  the  mortgage  and  claim  of  the 
plaintiff.  The  facts  constituting  the  cause  of  action 
and  not  the  evidence  of  the  facts  should  be  stated. 
Floyd  V.  Dearborn,  2  Code  Rep.,  17.  Hence,  it  would 
be  improper  to  set  out  the  mortgage  or  bond,  at 
length  in  the  complaint ;  and  it  will  be  enough  if  it 
state  that  A.  B.,  one  of  the  defendants,  mortgaged 
the  premises  on  the  day  mentioned  in  the  mortgage, 
to  secure  the  payment  of  the  sum  of  money  therein 
mentioned,  with  a  brief  description  of  the  premises, 
and  that  there  is  due  to  the  plaintiff,  for  principal 
and  interest  upon  the  mortgage,  the  sum  claimed. 

The  general  rules,  in  respect  to  the  statement  of 
the  cause  of  action,  heretofore  laid  down  in  regard 
to  actions  generally,  (ante  p.  99,)  apply  to  actions 
for  the  foreclosure  of  a  mortgage,  and  all  that  is 
necessary,  is  to  state  "the  facts  constituting  the 
cause  of  action,  in  ordinary  and  concise  language, 
without  repetition,  and  in  such  a  manner  as  to  en- 
able a  person  of  common  understanding  to  know 
what  is  intended." 

The  7'elief  to  which  the  plaintiff  supposes  himself 
entitled,  must  also  be  stated  in  the  complaint.  Or- 
dinarily, the  relief  demanded  by  the  plaintiff,  will 
be  for  the  payment  of  the  mortgage  debt,  that  the 
defendants  and  all  persons  claiming  under  them, 
subsequent  to  the  commencement  of  the  suit,  may 


320  THE    COMPLAINT. 

be  barred  and  foreclosed  of  all  right,  claim,  lien  and 
equity  of  redemption  in  the  mortgaged  premises ; 
and  that  the  premises  may  be  sold  upon  the  judgment 
of  the  court,  that  the  monies  arising  from  the  sale, 
may  be  applied  in  payment  of  the  amount  due  on 
the  bond  and  mortgage,  with  interest  to  the  time  of 
payment,  and  the  costs  and  expenses  of  the  suit,  as 
far  as  the  proceeds  of  the  sale  will  go ;  and  that  the 
defendant  who  is  personally  liable  for  the  debt,  may 
be  adjudged  to  pay  the  deficiency  which  may  re- 
main. 

The  whole  relief  to  which  the  plaintiff  conceives 
himself  to  be  entitled,  must  be  stated  in  the  com- 
plaint, for  if  the  defendant  does  not  answer  the 
complaint,  the  court  has  no  power  to  give  the  plain- 
tiff any  other  or  further  relief,  than  that  which  he 
has  demanded  in  the  complaint.  Code  §275.  There- 
fore, the  precise  judgment  which  the  plaintiff  de- 
sires, should  be  claimed  in  the  complaint.  So,  where 
for  any  purpose,  it  is  contemplated  to  move  for  an 
injunction,  a  prayer  for  that  purpose  should  be  con- 
tained in  the  complaint,  {Hovey  v.  McCrea,  4  How. 
Pr.  Rep.  31,)  otherwise  the  court  will  not  restrain 
the  defendant  unless  the  facts  rendering  such  res- 
traint necessary,  arise  after  the  suit  has  been  com- 
menced, when  the  injunction  may  be  granted  upon 
affidavit.  Code  §  219.  (a) 


(ii)  The  author  does  not  approve  of  the  decision  in  Hovey  \.  McCrea,  The 
learned  judge  doubtless  was  governed  by  tlic  practice  in  the  late  Court  of 
Chancery,  which  required  a  prayer  for  the  injunction,  and  also  the  subpoena  to 
be  contained  in  tlic  bill.  Rut  tliat  was  a  mere  regulation  of  the  court.  So,  a 
ne  exeat  could  not  be  issued  unless  there  was  a  prayer  for  it  in  the  bill,  except 
upon  petition  subsequently  presented.  By  the  Code  (§219)  an  injunction  may 
be  allowed,  "  where  it  shall  apj)car  by  the  complaint  that  the  plaintiff  is  enti- 
tled to  the  relief  demanded,  and  su"h  relief  consists  in  restraining  the  defendant." 


THE    COMPLAINT.  321 

Service  of  summons  and  verification  and  service  of  com- 
plaint.}—In  respect  to  the  service  of  the  summons, 
and  the  verification  and  service  of  the  complaint, 
the  same  rules  prevail  as  in  other  actions,  (as  to 
which  see  ante  p.  106-110,)  there  being  no  distinction 
between  actions  for  the  foreclosure  of  a  mortgage 
and  other  actions. 

Notice  of  object  of  suit.]— In  case  there  are  defend- 
ants, against  whom  the  plaintiff  makes  no  personal 
claim,  such  as  subsequent  purchasers,  mortgagees 
of  the  premises  and  judgment  creditors,  the  plain- 
tiff may  deliver  to  such  defendants,  with  the  sum- 
mons, a  notice  of  the  object  of  the  suit.  This  no- 
tice must  be  subscribed  by  the  plaintiff  or  his  attor- 
ney, and  must  set  forth  the  general  object  of  the 
action,  with  a  brief  description  of  the  mortgaged 
premises,  and  that  the  plaintiff  makes  no  personal 
claim  against  such  defendants.  Tlie  notice  should 
state  the  amount  claimed  to  be  due  upon  the  mort- 
gage, its  date,  and  the  time  and  place  of  recording, 
if  the  same  has  been  recorded.  In  case  of  the  ser- 
vice of  such  a  notice,  no  copy  of  the  complaint  need 
be  served  upon  such  defendant,  unless  within  the 
time  for  answering  he  shall  in  writing  demand  the 
same.     Code  §  130. 

If  a  defendant  upon  whom  such  notice  shall  have 
been  served,  unreasonably  defends  the  action,  he 
will  be  liable  to  pay  costs  to  the  plaintiff.  {Code, 
§  131.)     It  would  seem,  however,  that  if  the  plain- 


If,  therefore,  the  case  stated  by  the  plaintiff  in  his  complaint  is  one  in  which 
he  is  entitled  to  restrain  the  defendant,  an  injunction  may  be  allowed  without  a 
prayer  for  it.  The  prayer  is  matter  of/orm,  and  all  forms  are  abolisheil  by  the 
Code.  There  can  be  no  objection,  however,  to  insert  a  prayer  for  an  injunction, 
in  the  complaint,  as  part  of  the  relief  demanded. 

21 


322  NOTICE    OF    LIS    PENDENS. 

tiff  omits  to  serve  on  the  defendant,  agaiast  whom 
no  personal  claim  is  made,  a  notice  of  the  object  of 
the  suit,  such  defendant  would  have  the  right  to 
appear  and  claim  costs,  to  be  paid  by  the  plaintiff 
personally,  in  the  discretion  of  the  court  9  Paige, 
230. 

Notice  of  lis  pendens] — At  the  time  of  commencing 
the  action,  the  plaintiff  must  file  in  the  office  of  the 
clerk  of  the  county,  a  notice  of  the  pendency  of  the 
suit.  The  object  of  this  notice  is  to  apprize  all  sub- 
sequent purchasers  or  incumbrancers  of  the  mort- 
gaged premises,  of  the  existence  and  pendency  of 
the  action.  And,  hence,  it  is  provided  by  statute, 
that  from  the  time  of  filing  such  notice,  it  shall  be 
constructive  notice  of  the  pendency  of  the  action, 
to  all  purchasers  or  incumbrancers  of  the  property 
affected  thereby.     Code,  §  132. 

The  notice  must  contain  the  names  of  the  parties, 
the  object  of  the  action,  the  date  of  the  mortgage, 
the  time  and  place  of  recording,  with  a  brief  de- 
scription of  the  mortgaged  premises. 

If  the  plaintiff  omits  to  file  such  notice,  he  cannot 
obtain  a  judgment  of  foreclosure  and  sale  of  the 
mortgaged  premises,  it  being  provided  that  such  no- 
tice must  be  filed  twenty  days  before  the  judgment 
{Code  §  132)  and  proof  of  the  filing  must  be  furnish- 
ed to  the  court  upon  the  trial  or  upon  the  applica- 
tion for  judgment,  where  no  answer  has  been  put  in. 
Rule  49.  The  notice  of  the  pendency  of  the  action 
may  be  filed  at  any  time  provided  it  be  at  least  twen- 
ty days  before  the  judgment  is  obtained. 


PROCEEDINGS   UPON    RECEIPT    OF    ANSWER.  323 


SECTION  II. 

Proceedings  tpon  Receipt  of  Answer  of  Defendant, 

AND  WHEN  NO  AnSWER  IS  PUT  IN. 

The  action  having  been  commenced  by  the 
service  of  the  summons,  as  in  other  cases,  and  the 
service  of  the  notice  of  the  object  of  the  suit  upon 
such  of  the  defendants  as  no  personal  claim  is  iTiade 
against,  and  filing  the  notice  of  the  pendency  of  the 
suit,  the  plaintiff  has  done  all  that  is  required  until 
he  receives  the  answer  of  the  defendant,  or  the 
defendant  fails  to  answer. 

Proceedings  upon  receipt  of  anstver.] — The  defendant, 
or  any  of  the  defendants,  may  demur  to  the  com- 
plaint, as  in  other  actions,  and  for  the  same  causes; 
(see  ante,  p.  134)  or,  if  he  has  a  defence  to  the  action, 
may  put  in  an  answer  to  the  complaint.  In  these 
respects,  there  is  no  difference  between  an  action 
for  the  foreclosure  of  a  mortgage  and  any  other 
action.  A  defendant  may  procure  a  copy  of  the 
complaint,  in  the  same  manner  as  in  other  actions. 
See  ante,  p^  1 25.  If  an  answer  is  served  by  a  defend- 
ant, denying  any  material  fact  in  the  complaint, 
the  same  proceedings  are  had  to  try  such  issue,  as 
in  other  actions.  It  is  only  in  default  of  an  answer 
that  the  practice  in  procuring  a  judgment  is  differ- 
ent, in  this  action,  from  what  it  is  in  other  actions. 

Proceedings  where  no  answer  is  put  in,  or  where  the 
answer  does  not  deny  any  material  fact  set  forth  in  the 
complaint. 'l — If  no  answer  is  put  in  by  the  defendant, 
or  the  right  of  the  plaintiff,  as  stated  in  the  com- 
plaint, is  admitted  by  the  answer,  the  plaintiff  may 


324  APPLICATION    FOR    ORDER    OF    REFERENCF. 

apply  for  an  order  of  reference  to  some  suitable  and 
proper  person,  to  compute  the  amount  due  to  the 
plaintiff.  Rule  49. 

Application  for  order  of  reference.'\ — It  will  be  recol- 
lected that  the  summons  contains  a  notice  to  the 
defendant,  that  if  he  fails  to  answer  the  complaint 
within  the  time  specified,  an  application  will  be 
made  to  the  court  for  the  relief  demanded.  In  or- 
de  •,  therefore,  to  inform  the  court  what  amount  to 
render  judgment  for,  a  reference  is  necessary  to 
compute  and  ascertain  such  amount.  Hence,  upon 
the  expiration  of  the  time  limited  for  the  defendant 
to  answer,  the  plaintiff  must,  if  no  answer  has  been 
put  in,  or  no  answer  denying  any  material  fact  al- 
leged in  the  complaint,  apply  to  the  court  for  an 
order  of  reference.  Rule  49. 

The  application  for  the  order  may  be  made  at  a 
special  term,  in  the  district  embracing  the  county 
where  the  mortgaged  premises  are  situated,  or  in  a 
county  adjoining  that  in  which  such  premises  are 
situated. 

Where  the  defendant  has  appeared  in  the  action 
before  the  time  for  answering  has  expired,  he  is  en- 
titled to  a  notice  of  eight  days  of  the  time  and  phice 
of  the  application  for  the  order  of  reference.  Code,  § 
246,  sub.  2. 

The  affidavit.] — The  plaintiff  when  he  applies  for 
the  order  of  reference,  must  furnish  proof  to  the 
court  by  affidavit  or  otherwise,  of  the  service  of  the 
summons  upon  the  defendant,  and  that  no  answer 
has  been  put  in,  or  no  answer  denying  any  material 
fact  alleged  in  the  complaint.  It  must  also  appear, 
whether  any  of  the  defendants  are  infants  and  have 


ORDER   OF  REFERENCE.  825 

put  in  a  general  answer  by  their  guardian;  and 
whether  any  of  the  defendants  are  absentees;  and, 
whether  the  whnle  amount  of  the  mortgage  is  due, 
for  the  purpose  of  having  the  proper  direction  in- 
serted in  the  order. 

Upon  furnishing  proofs  of  these  facts,  the  court 
will  direct  a  reference  to  some  suitable  person  as 
referee,  to  compute  the  amount  due  to  the  plaintiff. 
Rule  49. 

The  order  of  reference.'] — The  order  must  direct  the 
person  named  as  referee,  to  compute  the  amount 
due  to  the  plaintiff  upon  the  bond  and  mortgage 
mentioned  in  the  complaint.  If  there  are  defend- 
ants who  are  prior  incumbrancers  of  the  mortgaged 
premises,  the  order  must  also  direct  the  referee  to 
compute  the  amount  due  to  such  defendants ;  and, 
if  the  whole  amount  secured  by  the  mortgage  is 
not  due,  the  order  must  require  the  referee  to  exam- 
ine and  report  whether  the  mortgaged  premises  can 
be  sold  in  parcels.  If  any  of  the  defendants  are  in- 
fants, and  have  put  in  a  general  answer,  by  their 
guardian ;  or,  if  any  oi  the  defendants  are  absentees, 
the  order  of  reference,  must  also  direct  the  referee, 
to  take  proof  of  the  facts  and  circumstances  stated 
in  the  complaint,  and  to  examine  the  plaintiff  on 
oath,  as  to  any  payments  which  have  been  made. 
Rule  49.   Code,  §  246,  suh.  2. 

Upon  entering  the  order  of  reference,  a  certified 
copy  should  be  procured  from  the  clerk,  and  de- 
livered to  the  referee,  who  will  proceed  to  execute 
the  order,  and  report  thereon,  accordingly. 

Application  for  judgment  of  foreclosure  and  sale.  '-^ 
The  plaintiff  having  obtained  the  report  of  the  refe- 
ree upon  all  the  subjects  embraced  in  the  order  of  re- 


326  AFFIDAVIT    NECESSARY. 

ference,  is  in  condition  to  move  the  court  for  the 
proper  judgment.  This  motion  may  be  made  at  any 
special  term  of  the  court,  in  the  district  embracing 
the  county  in  which  the  mortgaged  premises  are  sit- 
uated. If  the  defendant  has  appeared  in  the  action 
before  the  time  for  answering  has  expired,  he  is  en- 
titled to  notice  of  the  application  for  judgment. 

Affidavit  necessary.] — At  the  time  of  applying  for 
judgment  of  foreclosure  and  sale,  the  plaintiff  nmst 
furnish  proof  to  the  court,  by  affidavit,  or  by  the  cer- 
tificate of  the  clerk  of  the  county  where  the  mortga- 
ged premises  are  situated,  that  the  notice  of  the 
pendency  of  the  suit,  in  the  form  prescribed  by  sec- 
tion 132  of  the  Code,  has  been  filed  with  such  clerk,^ 
at  least  twenty  days  previous  to  such  application  for 
judgment.  The  affidavit  must  also  state,  whether 
any  of  the  defendants,  who  have  not  answered  the 
complaint,  are  absentees,  that  the  court  may  see 
that  the  referee  has  reported  upon  the  subjects  re- 
quired in  such  cases.  Rule  49. 

Upon  reading  such  affidavit,  together  with  the  re- 
port of  the  referee,  the  plaintiff  will  be  entitled  to 
a  judgment  of  foreclosure  and  sale  of  the  mort- 
gaged premises. 

If  the  motion  or  application  for  the  judgment  is 
made  in  a  county  other  than  that  in  which  the 
mortgaged  premises  are  situated,  the  rule  or  order 
for  judgment  must  be  certified  by  the  clerk  of  the 
court,  where  the  motion  is  made,  and  filed  in  the 
office  of  the  clerk  of  the  county  where  the  premises 
are  situated. 

The  judgment.'] — The  manner  of  entering  judgment 
is  the  same  a^  in  other  actions.     The  statement  of 


THE    JUDGMENT.  327 

the  judgment  is  a  brief  history  of  the  proceedings, 
and  a  judgment  of  the  court  for  the  amount  of  prin- 
cipal and  interest  reported  to  be  due,  with  the  costs 
and  disbursements  to  M^iich  the  plaintiff  is  entitled, 
to  be  inserted  therein,  and  a  direction  to  sell  the 
mortgaged  premises.  It  is  provided  by  rule  {Rule  50) 
that  in  every  judgment  for  the  sale  of  mortgaged 
premises,  the  description  and  particular  boundaries 
of  the  prcperty  to  be  sold,  so  far  at  least  as  the  same 
can  be  ascertained  from  the  mortgage,  shall  be  in- 
serted. And  unless  otherwise  specially  ordered  by 
the  court,  the  judgment  must  direct  that  the  mort- 
gaged premises,  or  so  much  thereof  as  may  be  suffi- 
cient to  raise  the  amount  due  to  the  plaintiff,  for 
principal,  and  interest  and  costs,  and  which  may  be 
sold  separately,  without  material  injury  to  the  par- 
ties interested,  be  sold  by  or  under  the  direction  of 
the  sherift^  of  the  county,  or  of  a  referee,  to  be  there- 
in named,  and  that  the  plaintiff  or  any  other  party 
may  become  a  purchaser  on  such  sale;  that  the 
sheriff  or  referee  execute  a  deed  to  the  purchaser; 
that  out  of  the  proceeds  of  the  sale  he  pay  to  the 
plaintiff  or  his  attorney  the  amount  of  his  debt,  in- 
terest and  costs,  or  so  much  as  the  purchase  money 
will  pay  of  the  same,  and  that  he  take  the  receipt 
of  the  plaintiff  or  his  attorney,  for  the  amount  so 
paid,  and  file  the  same  with  his  report  of  sale,  and 
that  the  purchaser  on  such  sale  be  let  into  the  pos- 
session of  the  premises  on  production  of  the  sheriff's 
or  referee's  deed,  and  a  certified  copy  of  the  order 
confirming  the  report  of  sale  after  the  same  has  be- 
come absolute.  Rule  50. 
It  seems,  also,  that  the  judgment  may  contain  a 


328  JUDGMENT    ROLL. 

provision  to  collect  the  balance  of  the  mortgage  debt 
that  may  remain  unsatisfied,  after  a  sale  of  the  pre- 
mises, and  that  the  proper  execution  therefor 
against  other  property  of  the  mortgagor,  may  be  is- 
sued accordingly.     2  Rev.  Stat.  §  152. 

The  judgment  is  entered  with  the  clerk,  and  must 
contain  the  amount  of  costs  and  disbursements  to 
which  the  plaintiff  is  entitled,  and  which  must  be 
allowed  and  adjusted  by  the  clerk,  by  whom  the  en- 
try of  judgment  is  made.  It  is  the  duty  of  the  at- 
torney who  draws  up  the  judgment,  to  distinctly 
number  and  mark  each  folio  in  the  margin  thereof 
Rule  44. 

Judgment  roll] — Upon  entering  the  judgment,  the 
clerk  is  required,  as  in  other  actions  to  make  up  and 
file,  in  his  office,  a  judgment  roll.  This  consists  of 
the  summons,  and  complaint  or  copies  thereof,  proof 
of  service,  and  the  affidavit  that  no  answer  has  been 
put  in,  the  report  of  the  referee,  and  a  copy  of  the 
judgment.     Code  §  281,  sub.  1.    But  see  ante  p.  201. 

Sale  ] — For  the  purpose  of  making  the  sale  under 
a  judgment  of -foreclosure,  a  certified  copy  of  the 
judgment  must  be  procured  from  the  clerk,  and  deliv- 
ered to  the  sheriff'  or  referee,  by  whom  the  sale  is  to 
be  made,  who  proceeds  therein  in  the  manner  pre- 
scribed by  law.  Code  §  285.  It  is  provided  by  rule 
{Rule  53,)  that  where  the  premises  to  be  sold  consist 
of  several  distinct  lots  or  parcels,  which  can  be  sold 
separately,  without  diminishing  the  value  thereof  on 
such  sale,  it  is  the  duty  of  the  sheriff  or  referee  to 
sell  the  same  in  separate  lots  or  parcels,  unless  oth- 
erwise specially  directed  by  the  court.  If,  however, 
the  sheriff  or  referee  is  satisfied  that  the  proper- 
ty will  produce  a  greater  price  if  sold  together,  than 


NOTICE   OF   SALE.  329 

it  will  in  separate  lots  or  parcels,  he  may  sell  it  to- 
gether, unless  otherwise  directed  in  the  judgment. 

Time  and  place  of  sale. — The  time  and  place  of  sale 
of  mortgaged  premises  under  a  judgment,  is  usually 
in  the  discretion  of  the  sheriff  or  referee,  except  that 
it  must  be  in  the  county  where  the  premises,  or  the 
principal  part  of  them,  are  situated  ,  and  except  in 
the  city  of  New- York,  where  the  sale  must  be  at  the 
Merchants'  Exchange,  unless  otherwise  specially  di- 
rected in  the  judgment.  The  time  of  the  sale  must 
be  between  the  hours  of  nine  o'clock  in  the  morn- 
ing and  the  setting  of  the  sun.  2  R,  S.  369,  §  36. 
Except  in  the  city  of  New- York,  where  it  must  be 
between  the  hours  of  twelve  o'clock  at  noon  and 
three  in  the  afternoon.  Rule  54.  The  sale  must  in 
all  cases  be  at  public  vendue.     2  R.  S.  869,  §  36, 

Notice  of  sale.] — The  sheriff  or  referee  to  Avhom  is 
delivered  the  copy  of  the  judgment,  must  give  no- 
tice of  the  time  and  place  of  the  sale,  in  the  man- 
ner required  by  law. 

The  provisions  of  the  statute  respecting  sales,  are 
as  follows:   2    R.  S.  369,  §§34,  35. 

The  time  and  place  of  the  sale  shall  be  publicly 
advertised  previously,  for  six  weeks  successively,  as 
follows : 

1.  A  written  or  printed  notice  thereof  shall  be 
fastened  up  in  three  public  places  in  the  town  where 
such  real  estate  shall  be  sold,  and  if  such  sale  be  in 
a  town  different  from  that  in  which  the  premises  to 
be  sold  are  situated,  then  such  notice  shall  also  be 
fastened  up  in  three  public  places  of  the  town  in 
which  the  premises  are  situated. 

2.  A  copy  of  such  notice  shall  be  printed  once  in 


830  CONDITIONS   OF   SALE. 

each  Aveek  in  a  newspaper  of  such  county,  if  there 
be  one. 

3.  If  there  be  no  newspaper  printed  in  such  coun- 
ty, and  the  premises  to  be  sold  are  not  occupied  by 
any  person  against  whom  the  judgment  is  entered, 
or  by  some  person  holding  the  same  as  tenant  or 
purchaser  under  such  person,  then  such  notice  shall 
be  published  in  the  state  paper,  once  in  each  week. 

Where  the  lands  lie  in  any  of  the  cities  of  this 
state,  in  which  a  daily  paper  is  printed,  except 
where  a  different  notice  is  required  by  law,  or  by 
the  order  of  the  cou-t,  the  notice  of  sale  must  be 
printed  in  one  or  more  of  the  daily  papers  of  that 
city  for  three  weeks  immediately  previous  to  the 
tin:e  of  sale,  at  least  twice  in  each  week.  Rule  54. 

In  the  notice  of  sale,  the  real  estate  to  be  sold 
must  be  described  with  common  certainty,  by  set- 
ting forth  the  name  of  the  township  or  tract,  and 
number  of  the  lot,  if  there  be  any,  and  if  there  be 
none,  by  some  other  appropriate  description.  2  Rev. 
Stat.,  369,  §  35. 

Conditions  of  sale.] — The  attorney  for  the  plaintiff 
should  prepare  a  statement  of  the  conditions  of  the 
sale. 

This  is  usually  annexed  to  the  notice  of  sale, 
and  therefore  need  not  describe  the  nature  and 
situation  of  the  property ;  but  it  should  specify  the 
terms  and  conditions  of  the  sale,  time  of  payment 
of  the  purchase  money,  time  when  the  deed  will 
be  delivered,  whether  there  is  to  be  any  deduction 
for  taxes  and  assessments,  and  such  other  conditions 
as  it  is  intended  to  annex  to  the  sale,  that  the  pur- 
chaser may  be  apprized  of  them. 

Conducting  sale]— We  have  before  adverted  to  the 


DEED    TO    THE    PURCHASER.  331 

manner  of  conducting  the  sale ;  it  is  to  be  between 
certain  hours  in  the  day  time,  and  at  public  vendue, 
&c.  The  premises  being  struck  off  to  the  highest 
bidder,  the  purchaser  should  sign  an  acknowledg- 
ment, which  is  written  under  the  conditions  of  sale, 
to  the  effect  that  he  has  purchased  the  premises  on 
those  conditions  for  the  sum  bid  by  him,  and  agree- 
ing to  conform  to  such  conditions. 

Deed  to  the  purchaser.'] — Immediately  upon  the  sale 
being  concluded,  if  the  purchaser  pays  the  amount 
bid,  the  sheriff  or  referee  who  made  the  sale  may 
execute  and  deliver  the  deed ;  and  it  is  not  neces- 
sary to  make  a  report  of  the  sale,  or  have  the  report 
confirmed,  before  the  deed  is  executed. 

Report  of  sale.] — After  the  sheriff  or  referee  has 
completed  the  sale,  by  executing  and  delivering  the 
deed,  and  paying  the  money  arising  from  the  sale, 
as  directed  in  the  judgment,  he  must  make  a  report 
thereof,  which  must  be  filed  in  the  office  of  the 
clerk  where  the  judgment  is  entered.  To  this  re- 
port the  sheriff  or  referee  who  makes  the  sale  must 
annex  the  receipts  for  the  money  paid  to  the  plain- 
tiff or  his  attorney,  which  must  be  filed  with  the 
report. 

Confirming  report  of  sale.] — After  the  report  of  sale 
is  made  it  must  be  filed  in  the  office  of  the  clerk, 
where  the  judgment  is  entered,  and  an  order  enter- 
ed that  such  report  be  confirmed.  This  is  a  com- 
mon order,  and  is  entered  in  the  book  which  the 
clerk  is  directed  to  keep  in  his  office  for  such  pur- 
pose. Rule  4. 

After  the  expiration  of  eight  days  from  the  enter- 
ing of  the  order  confirming  the  report  of  sale  it  be- 
comes absolute. 


S32  EXECUTION   FOR    DEFIClENCV. 

Upon  production  of  the  sheriff's  or  referees'  deed 
and  a  certified  copy  of  the  order  confirming  the  re- 
port of  sale,  after  the  same  has  become  absolute, 
the  purchaser  will  be  let  into  possession  of  the  pre- 
mises. 

SKCTION  III. 

Execution  for  Deficiency. 

As  has  been  before  stated,  in  an  action  to  fore- 
close a  mortgage  the  court  may  not  only  direct  the 
sale  of  the  mortgaged  premises,  and  compel  the  de- 
livery of  the  possession  thereof  to  the  purchaser,  but 
may  also  direct  payment  of  the  balance  of  the  mort- 
gaged debt,  if  any  shall  remain,  after  a  sale  of  the 
premises,  and  to  issue  the  necessary  execution,  as 
in  other  cases,  against  other  property  of  the  mort- 
gagor. 

In  such  case,  if  it  appears  by  the  report  of  sale 
that  the  proceeds  of  the  sale  of  the  mortgaged  pre- 
mises are  insufficient  to  satisfy  the  whole  amount 
due  to  the  plaintiff  for  principal  and  interest,  and 
costs  of  suit,  the  plaintiff  may  issue  an  execution  as 
in  other  cases,  to  collect  such  deficiency  or  balance 
out  of  the  other  property  of  the  mortgagor. 

But  the  sheriff's  or  referees'  report  must  be  filed 
and  confirmed  before  an  execution  can  issue. 


CHAPTER  II. 

OF  ACTIONS  FOR  THE   PARTITION  OF  REAL 

PROPERTY. 

Under  the  Revised  Statutes,  authorising  partition 
to  be  made  between  tenants  in  common  of  lands^ 
no  action  at  law  could  be  instituted,  and  the  pro- 
ceedings in  such  courts  were  conducted  by  petition. 
But  power  was  given  to  the  Court  of  Chancery,  to 
proceed  by  petition  or  bill  and  decree  the  partition 
or  sale  of  lands,  tenements  or  her  ditaments,  in  the 
same  manner  as  courts  of  law.  2  Rev,  Stat.,  329, 
§79. 

The  jurisdiction  and  powers  of  the  Court  of 
Chancery  being  now  vested  in  the  Supreme  Court, 
and  all  distinctions  between  law  and  equity  be- 
ing abolished,  the  mode  now  prescribed  for  proceed- 
ings for  partition,  is  by  action.  The  right,  however^ 
to  proceed  by  petition  as  formerly,  has  not  been 
taken  away,  but  power  is  given  to  the  court  to  pro- 
ceed by  action,  in  the  same  manner  that  the  late 
Court  of  Chancery  might  have  proceeded  by  bill. 

The  practice,  therefore,  in  partition  cases,  is  es- 
sentially unchanged.  An  action  being  merely  sub- 
stituted for  a  bill.  This  being  the  case,  the  subject 
will  not  be  entered  upon  at  much  length,  inasmuch 
as  the  present  treatises  upon  Chancery  practice^  will 
furnish  ample  information. 


334  PARTIES 

Parties.] — The  plaintiff  who  commences  the  action, 
must  be  seized  as  tenant  in  common  or  joint  tenant 
with  others  of  the  lands  sought  to  be  partitiohed, 
and  must  be  of  full  age.  The  plaintiiT  must  have 
an  immediate  and  absolute  interest  in  the  premises, 
and  a  mere  future  contingent  interest  will  not  en- 
title him  to  maintain  the  action.  2  Paige,  387.  So, 
the  estate  of  the  plaintiff  must  be  such  as  entitles 
him  to  the  immediate  possession  of  the  lands.  19 
Wendell,  367.  And  if  the  legal  title  is  disputed,  it 
seems,  that  it  must  be  first  settled  by  a  separate 
action.  4  John.  Chy.  Rep  ,  271. 

The  action  must  be  brought  against  the  other  te- 
nants in  common  or  joint  tenants,  and  against  such 
persons  as  have  specific  liens  against  the  property. 
And  it  is  always  well  to  make  mere  incumbrancers 
parties,  although  it  is  not  necessary. 

The  sufnmons.] — The  summons  is  in  the  same  form 
required  in  an  action  for  the  foreclosure  of  a  mort- 
gage. See  ante  p.  318. 

The  complaint.] — It  is  necessary  in  the  complaint 
for  the  partition  of  lands,  that  the  plaintiff  state  in  as 
concise  a  manner  as  possible,  the  rights  and  inter- 
ests of  the  respective  parties  in  the  premises,  and 
the  several  specific  Hens  and  incumbrances  thereon, 
5o  far  as  the  same  are  known  to  him;  and  if  the 
rights  of  any  person  are  unknown  to  him,  he  shall 
state  the  same  according  to  his  information  and  be- 
lief 

It  is  not  necessary  to  aver  in  the  complaint  that 
the  plaintiiF  is  in  possession  of  the  premises;  that 
fact  being  presumed  from  the  allegation  that  the 
parties  are  seized  as  tenants  in  common.  3  Paige 
242. 


VERIFYING    COMPLAINT.  335 

If  there  are  several  tracts  or  parcels  of  land  lying 
within  this  state,  which  are  owned  by  the  same  per- 
sons in  common,  they  must  all  be  included  in  the 
same  complaint,  it  being  improper  to  institute  se- 
parate suits  for  the  partition  thereof,  without  the 
consent  of  all  the  parties  interested  therein.  Rule  11. 
And  if  separate  suits  are  brought  without  such  con- 
sent, the  plaintiff  may  be  subjected  to  the  payment 
of  the  costs.  Ibid. 

The  same  general  rules  in  respect  to  stating  the 
cause  of  action  that  prevail  in  actions,  are  applica- 
ble to  partition  suits.  See  ante  p.  99. 

The  relief  to  which  the  plaintiff  claims  to  be  en- 
titled must  be  stated  in  the  complaint,  which,  in 
general,  will  be  for  a  partition  of  the  lands  among 
the  several  tenants  in  common,  or  joint  tenants,  in 
proportion  to  their  respective  rights  and  interests 
therein ;  or,  for  a  sale  thereof  in  case  a  partition 
cannot  be  made  without  greatly  prejudicing  the 
rights  of  the  parties,  and  a  distribution  of  the  pro- 
ceeds among  the  owners. 

Verifying  complaint.'] — In  an  action  for  the  parti- 
tion of  lands,  it  is  necessary  for  the  plaintiff  to  ver- 
ify the  complaint.  2  Rev.  Stat.  318,  §  5,  sub.  3.  The 
verification  of  the  complaint  is  the  same  as  is  re- 
quired in  other  actions,  where  a  pleading  is  verified. 
Code,  §  157.  See  ante  p. 

Service  of  summons.] — The  summons  is  served  in  the 
same  manner  as  in  other  actions,  (see  ante  p.  106) 
and  as  in  other  actions  it  is  not  necessary  to  serve 
upon  the  defendants  a  copy  of  the  complaint,  unless 
the  same  is  demanded.  See  ante  p.  110. 

Notice  of  object  of  suit.] — In  case  any  of  the  defend- 


336  NOTICE    OF    LIS    PENDENS. 

ants  are  persons  having  specific  or  general  liens  or 
incumbrances  upon  the  lands,  and  who  are  not 
joint  tenants,  or  tenants  in  common  therein,  and 
against  whom  the  plaintiff  makes  no  personal  claim, 
the  plaintiff  may  deliver  to  such  defendants  with 
the  summons,  a  notice  of  the  object  of  the  suit. 
This  notice  must  be  subscribed  by  the  plaintiff  or 
his  attorney,  and  must  set  forth  the  general  object 
of  the  action,  with  a  brief  description  of  the  lands 
sought  to  be  partitioned,  and  that  the  plaintiff  makes 
no  personal  claim  against  such  defendants.  In  case 
of  the  service  of  such  summons,  no  copy  of  the 
complaint  need  be  served  upon  such  defendants, 
unless  within  tlie  time  for  answering,  they  shall  in 
writing  demand  the  same.  Code,  §  130. 

If  a  defendant  upon  whom  such  notice  shall  have 
been  served,  unreasonably  defends  the  action,  he 
will  be  liable  to  pay  costs  to  the  plaintiff.  Code,  §  131. 
And  it  seems,  that  if  the  plaintiff  omits  to  serve 
such  notice  upon  a  defendant  against  whom  no  per- 
sonal claim  is  made,  such  defendant  would  have 
the  right  to  appear  and  claim  costs  to  be  paid  by 
the  plaintiff  personally,  in  the  discretion  of  the 
court.  9  Paige,  230. 

Notice  of  lis  pendens.'] — At  the  time  of  commencing 
the  action,  the  plaintiff  must  file  in  the  office  of  the 
clerk  of  each  county  where  the  lands  are  situated, 
a  notice  of  the  pendency  of  the  action.  The  object 
of  this  notice  is  to  apprize  subsequent  purchasers 
and  incumbrancers  of  the  existence  of  the  action; 
and  hence  it  is  provided  by  statute  {Code,  §  132,) 
that  from  the  time  of  filing  such  notice,  it  shall  be 
constructive  notice  of  the  pendency  of  the  action 


PROCEEDINGS    IF    ANSWER   IS   PUT    IN.  337 

to  all  purchasers  or  incumbrancers  of  the  property- 
affected  thereby. 

The  notice  must  contain  the  names  of  all  the 
parties,  the  object  of  the  action,  and  a  description 
of  the  premises  sought  to  be  partitioned. 

Proceedi7igs  if  ansiuer  is  put  m.] — If  any  of  the  de- 
fendants ansAver  the  complaint,  and  deny  any  ma- 
terial allegation  of  fact  therein,  or  demur  to  the 
complaint,  the  question  of  fact  raised  by  the  ans- 
swer,  or  of  law  raised  by  the  demurrer,  is  tried  in 
the  same  manner  as  in  other  actions,  there  being  no 
distinction  between  suits  for  partition  and  other  suits. 
And  where  the  rights  and  interest  of  the  parties  are 
truly  and  correctly  stated  in  the  complaint,  if  an 
adult  defendant  unnecessarily  puts  in  an  answer,  he 
will  not  be  allowed  costs,  either  against  the  adverse 
party  or  out  of  proceeds  of  the  sale  of  the  property, 
but  may,  in  the  discretion  of  the  court,  be  charged 
with  the  extra  costs,  which  the  parties  have  been 
subjected  to  by  reason  of  the  answer. 

Proceedings  where  no  answer  has  been  put  in ;  or,  where 
the  answer  does  not  deny  auy  material  fact  set  forth  in  the 
complaint.] — If  the  rights  and  interests  of  the  parties, 
as  stated  in  the  complaint,  are  not  denied  or  con- 
troverted, if  any  of  the  defendants  are  infants,  and 
have  put  in  the  usual  answer  by  their  guardian,  the 
plaintiff  may  apply,  on  an  affidavit  of  the  fact  and 
notice  to  such  of  the  parties  as  have  appeared  at  a 
special  term,  for  an  order  of  reference,  to  take  proof 
of  the  plaintiff's  title  and  interest  in  the  premises, 
and  of  the  several  matters  set  forth  in  the  complaint ; 
and  to  ascertain  and  report  the  rights  and  interests 
of  the  several  parties  in  the    premises,    and  an  ab- 

22 


338  ORDER    OF    REFERENCE. 

stract  of  the  conveyances  by  which  the  same  are 
held.  Rule  78. 

Order  of  reference.] — The  order  of  reference,  its  con- 
tents, and  proceedings  under  it,  are  so  fully  laid 
dow  in  {Rule  79)  that  it  is  unnecessary  to  do  any- 
thing more  than  simply  to  refer  to  it. 

Application  for  judgment.] — Instead  of  a  decree  as 
formerly,  a  judgment  of  the  court,  is  now  entered. 

Upon  the  report  of  the  referee  being  completed,  an 
application  for  judgment  may  be  made  at  a  special 
term  in  the  district  embracing  the  county  in  which 
the  lards  lie,  or  in  a  county  adjoining  the  one  where 
the  lands  lie.  If  the  referee  reports  that  the  lands 
can  be  partitioned,  the  judgment  will  be  for  actual 
partition  and  for  the  appointment  of  commissioners 
to  make  the  partition.  If  the  report  shows  that  a 
partition  cannot  be  made  without  great  prejudice 
to  the  rights  and  interests  of  the  parties,  the  judg- 
ment will  be  for  a  sale  under  the  direction  of  the 
sheriff  or  of  a  referee  to  be  named  in  the  judgment. 

The  proceedings  for  an  actual  partition  or  a  sale,, 
being  so  fully  explained  and  defined  in  the  valuable 
treatise  of  Mr.  Barbour  upon  the  practice  of  the 
Court  of  Chancery,  (2  Bab.  Ch.  Pr.  292-304,)  and  as 
the  practice  in  these  particulars  is  unchanued  by  the 
Code,  it  would  be  a  work  of  supererogation  to  embo- 
dy it  in  this  work. 

Upon  filing  the  report  of  partition  or  sale  the  pro- 
ceedings are  completed,  and  no  further  step  is  ne- 
cessary except  to  have  the  costs  of  the  parties  ad- 
justed by  the  clerk. 

Costs.] — The  costs  in  partition  suits  are  in  the  dis- 
cretion of  the  court.  Code^  306.  The  general  rule 
is  to  allow  costs  to  the  plaintiflf  and  such  of  the  de- 


COSTS.  339 

fendants  as  have  necessarily  appeared  in  the  action, 
to  be  paid  by  all  the  owners  respectively  in  propor- 
tion to  their  rights  and  interests  in  the  premises ; 
or  to  be  paid  out  of  the  proceeds  of  the  sale.  The 
question  of  costs  should  be  settled  by  the  court  at 
the  time  of  the  application  for  judgment,  and  provis- 
ion made  for  them  in  the  judgment  directing  the  par- 
tition or  sale,  and  it  is  doubtful  if  they  can  after- 
wards be  allowed,  there  being  hut  one  judgment,  and 
that  being  entered  before  the  partition  or  sale  is  made 
(the  partition  or  sale  being  the  execution  of  the 
judgment)  unless  the  costs  are  provided  for  in  it,  it 
seems  they  cannot  afterwards  be  allowed. 

Under  the  former  practice  the  directions  for  a  par- 
tition was  contained  in  an  interlocutory  decree,  and 
upon  the  coming  in  of  the  report  of  the  commis- 
sioners, a  final  decree  was  made,  w^hich  contained  a 
provision  for  the  costs.  Now,  however,  there  is  but 
one  judgment,  and  that  would  seem  to  be  before 
the  partition  is  made;  hence  it  should  contain  every 
provision  and  direction  required  in  the  final  decree, 
under  the  old  practice. 

It  is  the  duty  of  the  parties  who.  claim  costs  or 
who  are  entitled  to  costs,  to  have  them  properly  ad- 
justed by  the  clerk  and  inserted  in  the  entry  of 
judgment.  The  plaintiff  may  give  notice  to  such  of 
the  defendants  as  are  entitled  to  costs,  requiring 
them  to  have  their  costs  adjusted  and  settled,  and 
filed  with  the  clerk,  and  in  default  the  plaintiff  may 
have  the  judgment  entered,  without  inserting  therein 
the  costs  of  such  defendants  as  have  failed  to  file 
their  bills.  Such  notice  should  be  at  least/oizr  days, 
and  is  served  like  other  notices.  The  defendants 
must  give  i:otice  of  the  adjustment  of  their  costs, 
in  like  manner  as  in  other  cases. 


CHAPTER  III. 

ACTIONS  FOR  DIVORCE. 

The  action  for  a  divorce,  a  vinculo  matrimonii^ 
which  heretofore  could  only  he  sustained  in  a  court 
of  equity,  is  now  made  the  subject  of  an  action  cog- 
nizable in  the  Supreme  Court. 

As  the  practice  in  these  actions  is  to  a  considera- 
ble extent,  sui  generis,  and  is  made  the  subject  of 
express  rules,  a  special  and  particular  detail  of  the 
proceedings  must  seem  to  be  unnecessary.  In  so 
far,  however,  as  the  practice  is  assimilated  to  other 
actions,  a  reference  to  the  practice  generally  will 
only  be  made. 

Parties.^ — Of  course  in  an  action  for  divorce,  the 
husband  and  wife  alone  are  parties.  The  suit  is 
instituted  by  the  one  against  the  other,  to  obtain  a 
judgment  declaring  void  the  marriage  contract. 

This  action  is  an  exception  to  the  general  rule 
that  Si  feme  covert  cannot  sue  or  be  sued  alone,  for  she. 
is  expressly  authorized  by  statute  {Code,  §  114,  sub. 
2,)  to  sue  or  be  sued  alone  where  the  action  is  be- 
tween herself  and  husband.  If  the  action  be  by  the 
wife,  it  is  not  necessary  to  join  any  person  with  her 
as  plaintiff;  that  part  of  the  practice  or  rule  which 
required  the  suit  to  be  prosecuted  by  a  responsible 
person,  as  her  next  friend,  being  now  abrogated,  so 


THE    COMPLAINT.  341 

that  the  action  must   necessarily  be  brought  in  her 
name  alone. 

The  summons.'] — The  summons  is  in  the  same  form, 
as  is  required  in  cases  where  an  application  to  the^ 
court  is  necessary  to  obtain  the  relief  demanded. 
In  such  cases  it  is  improper  to  take  judgment  with- 
out applying  to  the  court.  See  ante  p,  96. 

The  complaint.] — In  addition  to  the  usual  rules 
appertaining  to  complaints  generally,  requiring  the 
cause  of  action  to  be  stated  in  ordinary  and  concise 
language,  and  which  rules  apply  as  well  to  the 
action  for  a  divorce  as  to  other  actions,  it  is  re- 
quired that,  when  the  action  is  founded  upon  an 
allegation  of  adultery,  the  plaintiff  must  positively 
aver  in  the  complaint  that  the  adultery  charged 
therein  was  committed  without  his  consent,  con- 
nivance, privity,  or  procurement;  that  five  years 
have  not  elapsed  since  he  discovered  the  fact  that 
such  adultery  had  been  committed;  and  that  he 
has  not  voluntarily  cohabited  with  the  defendant 
since  the  discovery  of  such  adultery.  Rule  68.  If 
such  averment  is  not  made,  judgment  for  the  relief 
demanded  will  not  be  granted,  without  the  plain- 
tiff's affidavit  of  the  facts. 

If  at  the  time  of  the  commission  of  the  adultery 
the  defendant  was  married  to,  or  was  living  with 
the  adulterer,  in  open  or  notorious  adultery,  the 
plaintiff  must  also  aver,  in  his  complaint,  that  five 
years  have  not  elapsed  since  the  commencement  of 
such  adulterous  intercourse  was  discovered  by  him. 
Ibid. 

Ver  if  ling  complaint.] — The  complaint  in  an  action 
for  a  divorce,  on  the  ground  of  adultery,  should 
always  be  verified  by  the  oath  of  the  plaintift^,  in 


342  REFERENCE  TO  TAKE  PROOF. 

the  usual  manner  of  verifying  pleadings,  where  by- 
law they  may  be  verified,  {see  ante,  p.  106,)  for  other- 
wise an  affidavit  of  the  fact  will  be  required.  Rule 

68. 

Reference  to  take  poof.] — The  statute  directs  that 
no  sentence  of  nullity  of  the  marriage  contract 
shall  be  pronounced  solely  on  the  declarations  or 
confessions  of  the  parties ;  but  the  court  shall,  in 
all  cases,  require  other  satisfactory  proof  of  the  ex- 
istence of  the  facts  on  which  the  allegation  of  adul- 
tery is  founded.  2  Rev.  Stat.,  144,  §  36. 

For  the  purpose,  therefore,  of  taking  the  neces- 
sary evidence,  a  reference  will  be  ordered  in  all 
cases  where  no  answer  is  put  in  to  the  complaint, 
or  where  the  answer  admits  the  facts  as  charged. 
Upon  proof,  by  affidavit,  that  no  answer  has  been 
put  in,  or  no  answer  denying  any  material  fact 
charged  in  the  complaint,  the  plaintiff  may  apply 
to  the  court,  at  a  special  term,  for  an  order  referring 
it  to  some  suitable  person,  as  referee,  to  take  proof 
of  all  the  material  facts  alleged  in  the  complaint, 
and  to  report  such  proof  to  the  court,  with  his 
opinion  thereon.  Rule  68. 

Where  the  complaint  seeks  to  annul  the  marriage,, 
on  the  ground  that  the  party  was  under  the  age  of 
legal  consent,  the  order  of  reference  cannot  be  ob- 
tained, without  an  airidavit,  showing  that  the  parties 
have  not  freely  cohabited  for  any  time,  as  husband 
and  wife,  after  the  plaintiff  attained  the  age  of  con- 
sent. Rule  69.  So,  where  the  giound  of  the  action 
is  that  the  plaintili's  consent  was  obtained  by  force 
or  fraud,  the  plaintiff  must  shew  by  affidavit  that 
there  has  been  no  voluntary  cohabitation  between 
the  parties,  as  man  and  wife;  or,  where  the  com- 


ANSWER.  343 

plaint  seeks  to  annul  the  marriage,  on  the  ground 
that  the  plaintiff  was  a  lunatic,  an  affidavit  must  be 
produced  showing  that  such  lunancy  continues;  or, 
the  plaintiff  must  show  by  affidavit,  that  the  parties 
have  not  cohabited  as  husband  and  wife,  after  the 
plaintiff  was  restored  to  reason.  Ibid. 

If  the  ground  of  the  action  is  that  the  defendant 
has  another  wife  living,  no  other  affidavit,  than  that 
of  regularity  is  required  to  obtain  an  order  of  refe- 
rence. 1  Ediv.  Ch.  jR.,  40. 

On  a  reference  to  take  proof  of  the  facts  alleged 
in  the  complaint,  in  an  action  for  a  separation  or 
limited  divorce,  it  is  competent  for  the  referee  to 
examine  the  plaintiff,  on  oath,  as  toanycrueror 
inhuman  treatment,  alleged  in  the  complaint,  which 
took  place  when  no  witnesses  were  present,  who 
are  competent  to  testify  to  the  facts  on  such  refe- 
rence. Bule  70. 

Answer.] — The  defendant  may  answer  the  com- 
plaint as  in  other  actions.  He  may  deny  the  alle- 
gation of  adultery,  (2  Paige,  108,)  and  he  may  in  the 
same  answer  set  up  the  adultery  of  the  plaintiff  or 
a  condonation  of  the  offence  in  bar  of  the  suit.  Id. 
Rule  72. 

In  case  of  an  issue  formed  by  the  pleadings,  it  is 
to  be  tried  in  the  same  manner  as  other  issues.  Rule 
74. 

Where  the  action  is  instituted  by  the  husband, 
and  he  intends  to  question  the  legitimacy  of  any 
of  the  children  of  his  wife,  he  must  distinctly  aver 
in  the  complaint  that  he  believes  them  to  be  illegi- 
timate. And  if  a  reference  is  ordered,  proof  must  be 
taken  upon  the  question  of  legitimacy,  as  well  as 


344  JUDGMENT. 

upon  the  other  matters  stated  in  the  complaint.    If, 
however,  an  issue  is  formed  by  the  pleadings,  the 
question  of  legitimacy  of  the  children  must  then  be 
tried  at  the  same  time  of  the  other  issues.  Rule  73. 
Hearing  and  judgment.'] — No  sentence  or  judgment 
of  nullity  declaring  void  a  marriage  contract,   or 
judgment  for  a  divorce,  or  for  a  separation  or  limi- 
ted divorce,  will  be  made  of  course  by  the  defend- 
ants failing  to  answer  the  complaint ;  nor  in  conse- 
quence of  any  neglect  to  appear  at  the  hearing,  or 
by  consent.  Rule  75.    But  after  the  trial  of  the  issues, 
or  upon  the  coming  in  of  the  report  of  the  referee, 
containing  the  proofs,  the  cause  may  be  heard  at  a 
special  term  of  the  court.  Ibid.     If  no  person  ap- 
pears on  the  part  of  the  defendant,  it  is  improper  to 
read  in  public  the  details  of  the  evidence  in  adul- 
tery cases.     They  should  be  submitted  to  the  judge 
in  open  court.  Bid. 

Judgmefit.] — Upon  the  decision  of  the  court  being 
pronounced,  the  appropriate  judgment  is  drawn  up 
and  entered.  In  this  respect  the  practice  is  the 
same  as  in  other  cases.  The  judgment  must  be  en- 
tered in  the  office  where  the  action  is  triable,  and 
all  the  papers  should  be  filed  there. 

Costs.] — The  costs  in  actions  for  a  divorce,  are 
whol'y  in  the  discretion  of  the  court,  and  they  are 
regulated  by  the  facts  and  circumstances  of  each 
particular  case.  No  rules  can  therefore  be  laid 
down  to  govern  the  practice  upon  this  subject. 
Ordinarily,  however,  where  the  action  is  brought 
by  the  wife,  costs  will  be  allowed  her,  if  she  is  suc- 
cessful. Besides,  it  is  usual  in  such  a  case,  where 
the  wife  is  dependent  upon  the  husband,  for  the 


COSTS.  345 

court  to  compel  the  husband  to  pay  a  stipulated  sum 
weekly,  or  monthly,  or  otherwise,  for  the  support  of 
the  wife,  during  the  pendency  of  the  suit,  and  a 
further  sum  in  gross  to  pay  the  expenses  of  the 
litigation,  and  pay  her  attorneys'  and  counsel  fees. 
The  application  for  this  allowance  may  be  made  at 
any  time  after  the  commencement  of  the  action, 
and  it  is  usual  to  make  the  motion  at  the  commence- 
ment of  the  suit.  The  motion  is  made  at  the  spe- 
cial term,  upon  notice  to  the  defendant,  and  upon 
an  affidavit  of  the  facts,  a  copy  of  which  must  be 
served  upon  the  adverse  party,  with  the  notice  of 
the  motion. 


CHAPTER  IV. 

PROCEEDINGS  AGAINST  A  JUDGMENT  DEBTOR  AF- 
TER A  RETURN  OF  AN  EXECUTION  UNSATISFIED 
IN  WHOLE  OR  IN  PART. 

As  the  courts  were  constituted  under  the  Consti- 
tution of  1821,  a  judgment  creditor  after  having  ex- 
hausted his  remedy  at  law,  against  his  debtor,  was 
compelled  to  go  into  the  Court  of  Chancery  to  ob- 
tain a  discovery  of  the  debtor's  property,  and  com- 
pel its  application  to  the  judgment.  The  Court  of 
Chancery  was  clothed  with  authority  not  only  to 
compel  a  discovery  of  such  property,  choses  in  ac- 
tion and  personal  effects  as  were  not  the  subject  of 
levy  and  sale  under  an  execution,  or  were  concealed 
by  the  judgment  debtor,  but  also  by  injunction,  to 
prevent  a  transfer  thereof  to  other  persons. 

This  proceeding  was  called  a  "creditors'  bill,"  and 
was  founded  upon  the  return  of  an  execution,  un- 
satisfied in  whole  or  in  part,  and  the  allegation  on 
the  part  of  the  creditor,  that  the  debtor  had  proper- 
ty or  things  in  action,  which  could  not  be  reached 
by  execution  upon  the  judgment. 

Subsequently,  it  was  provided  by  statute,  {Laws  of 
1831,  Chop.  300,)  that  a  creditor  might  proceed 
against  the  debtor  before  judgment  or  after,  by  war- 
rant, and  compel  an  assignment  of  any  property, 
rights  and  choses  in  action,  to  be  applied  upon  the 
demand  or  judgment.     Under  this  statute,  however, 


CASES  IN  WHICH  THE  PROCEEDINGS  MAY  BE  INSTITUTED.  347 

it  was  necessary  to  shew  to  the  officer  wdio  issued 
the  warrant,  that  the  defendant  had  done  or  was 
ahout  to  do  one  of  the  several  acts  mentioned  in 
the  statute,  before  the  officer  was  authorized  to  is- 
sue the  warrant.  Under  this  statute,  therefore,  no 
discovery  from  the  debtor  could  be  obtained  upon 
the  mere  belief  that  he  had  property  which  he 
ought  to  apply  in  payment  of  his  debt ;  and  hence, 
the  creditor  had  in  general  to  resort  to  his  "creditors' 
bill"  to  obtain  the  satisfaction  of  his  judgment. 

The  Legislature  have  now  enacted  provisions  of 
law  which  cover  the  jurisdiction  and  powers  of  the 
late  Court  of  Chancery-  as  exercised  in  judgment 
creditors'  bills,  and  also  the  provisions  of  the  Statute 
of  183 1,  above  referred  to,  and  which,  doubtless  was 
intended  as  a  substitute  for  both.  Code  §  292. 

SECTION  I, 

In    WHAT    CASES    THE    PROCEEDINGS   MAY   BE    INSTITUTED. 

Judgment.'] — The  cases  in  which  the  proceeding  to 
obtain  a  discovery  of  the  property  of  a  judgment 
debtor,  can  be  instituted,  are  those  in  which  a  judg- 
ment for  the  payment  of  money  has  been  obtained. 
Hence,  if  the  judgment  is  other  than  for  the  pay- 
ment of  money;  as,  for  the  delivery  of  the  possess- 
ion of  real  or  personal  property  only,  without  dama- 
ges for  the  withholding;  or,  for  the  specific  perform- 
ance of  a  contract,  without  damages  for  the  omission 
to  perform;  or,  for  the  partition  of  lands,  except 
where  the  judgment  directs  the  payment  of  money 
by  one  party  or  another,  for  owelty  or  equality  of 
partition  or  othe;wise;  in  these  and  like  cases,  the 


348  CASES  IN  WHICH  THE  PROCEEDINGS  MAY  BE  INSTITUTED, 

proceeding  against  the  defendant  cannot  be  institu- 
ted. If,  however,  the  judgment  in  such  cases  be  for 
the  payment  cf  costs  in  addition,  it  is  sufficient  to 
autliorize  the  institution  of  this  proceeding. 

The  judgments  are  not  confined  to  such  as  are 
rendered  in  the  Supreme  Court;  but  the  judgments 
of  a  county  court,  the   superior  court,  and  court  of 
common  pleas  of  the  city  and  county  of  New- York, 
and  also  of  a  justice's  court,  (a)  are  cases  in  which 


(a)  It  has  been  decided  by  Judge  Daley,  of  the  New-York  common  pleas,  that 
the  court  has  no  power  under  the  provisions  of  the  Code  to  compel  a  defendant 
to  appear  and  answer,  concerning  his  property,  except  where  the  judgment 
was  rendered  in  a  court  of  record.  The  case  before  him  was  upon  the  return 
of  an*execution,  issued  upon  a  judgment  rendered  in  a  jutice^s  court.  It  is 
difficult  to  determine  upon  what  principle  the  decision  is  based.  There  is  cer- 
tainly nothing  in  the  language  of  the  Code,  that  excludes  justices'  judgments; 
on  the  contrary  it  is  strongly  inferrable,  that  the  Legislature  intended  to  ap- 
ply the  provisions  of  §  292  to  any  and  every  species  of  judgments;  for  they  say, 
that  upon  the  return  of  an  execution  issued  to  the  sheriflTof  the  county  where 
the  debtor  resides,  or  where  the  judgment  roll  or  transcript  of  a  justice's  judg- 
ment is  filed,  the  creditor  may  apply  for  the  order  Nor,  can  it  be  argued  that 
the  provisions  of  the  Code,  generally,  apply  only  to  courts  of  record,  and 
therefore,  justices'  judgments  are  excluded.  True,  they  are  mostly  confined  to 
courts  of  record;  yet,  the  whole  of  titles  6  and  7  of  part  one,  are  devoted  to 
justices'  and  other  inferior  courts,  and  the  proceedings  therein;  and  are  their 
judgments  excluded  from  the  provisions  of  §  292,  because  they  are  not  expressly 
named  therein?  An  argument  in  favor  of  the  decision  may  be  diawn,  from  the 
peculiar  language  of  §  8,  which  says  that  the  Code  is  divided  into  two  parts, 
the  first  relating  to  courts,  and  the  second  to  civil  actions;  and  which  is  dis- 
tributed into  fifteen,  titles.  Tlie  first  four  relating  to  the  courts  of  the  state, 
and  the  others  to  f' actions  ^^  in  the  Supreme  Court,  &c.,  without  naming  a 
justice's  court.  But  it  cannot,  we  think,  be  believed  that  none  of  the  provisions 
of  the  remaining  eleven  titles  of  the  Code  are  in  any  way  applicable  to  courts 
of  justices  of  the  peace.  If  that  were  so,  what  power  is  there  to  review,  up- 
on appeal  in  the  county  court,  the  judgments  rendered  in  justices'  courts? 
They  are  not  "  actions  "  in  any  of  the  courts  mentioned  in  §  8.  Again,  what 
power  woulil  there  be  to  examine  a  party  as  a  witness,  as  provided  in  chap.  6, 
of  title  12,  or  a  wiiness  who  was  interested  in  the  action,  as  provided  in  chap. 
7  of  the  same  title?  If,  because  the  title  of  the  Code  which  prescribes  the  pro- 
ceedings supplementary  to  the  execution  is  confined  to  "  actions  "  in  courts 
other  than  of  jusiices  of  the  peace,  therefore  such  proceedings  upon  a  justice's 
judgnient  cannot  be  instituted,  then  titles  6  and  7,  of  part  2,  are  equally  inap- 
plicable. 

It  is  conceded,  that  these  proceedings  supi)lementary  to  the  execution,  are 
a  substitution   for  a  "creditor's  bill"  in  the  late  court  of  chancery.    In  that 


RETURN    OF    EXECUTION.  3i9 

the  creditor  may  commence  a  proceeding  to  obtain 
a  discovery  of  the  property  of  the  debtor.  And  this 
may  also  be  done  upon  a  judgment  rendered  in 
a  mayor's  or  recorder's  court  of  cities. 

Return  of  execution.] — In  order  to  confer  jurisdic- 
tion upon  the  officer,  an  execution  must  have  been 
issued  upon  the  judgment  against  the  property  of 
the  judgment  debtor,  and  returned  unsatisfied  in 
whole  or  in  part. 

The  jurisdiction  in  these  cases  arises  from  the 
fact  that  the  creditor  has  been  unable  to  obtain  sat- 
isfaction of  his  judgment,  by  seizing  the  property  of 
the  defendant  under  the  execution  and  selling  the 
same;  n  other  words,  that  he  has  exhausted  the 
remedy  given  by  execution  for  the  collection  of  the 
debt.  An  execution  must,  therefore,  not  only  have 
been  issued,  but  must  have  been  returned  by  the 
sheriff  or  other  officer  to  whom  it  was  issued,  unsat- 

court  the  chancellor  (Dix  v.  Eriggs,  9  Paige  595,)  has  decided  that  a  cretlitor's 
bill  might  be  filed  upon  the  return  of  an  execution  unsatisfied,  issued  upon  a 
justice'. ■<  judgment  where  the  judgment  has  been  docketed  in  the  eountj^  clerk's 
oflBce,  so  as  to  make  it  a  lien  upon  the  defendant's  real  estate.  The  view, 
therefore,  that  the  learned  judge  has  taken  of  this  question,  it  seems  to  me,  is 
incorrect,  and  I  think  that  it  is  clearly  within  the  power  of  the  cout  to  issue 
the  order  where  the  execution  has  been  issued  upon  a  justice's  judgment.  The 
decision  is  not  reported,  and  the  author  has  seen  only  a  note  of  it  published  in 
the  daily  papers.  Hence  he  has  not  been  able  to  review  any  of  its  positions^ 
There  is  another  section  of  the  Code  that  helps  to  elucidate  this  question.  The 
13th  subdivision  of  §  64,  provides  that  <'if  the  judgment  (rendered  by  a  justice 
of  the  peace)  be  docketed  with  the  county  clerk,  the  execution  shall  be  issued 
by  him  to  she  sheriff  of  the  county,  and  have  the  same  tffed  and  be  executed  in 
the  same  manner  as  other  executions  and  judgments  of  the  county  courts," 
Besides,  it  is  expressly  provided  in  §  63,  that  from  the  time  of  entering  and 
docketing  a  transcript  of  a  justice's  judgment  in  the  county  clerk's  office,  "the 
judgment  shall  be  a  judgment  of  tht:  county  court."  If,  therefore,  such  judgment 
becomes  a  judgment  of  the  county  court,  it  is  relieved  from  the  difficulty  pre- 
sented in  section  8,  for  it  is  then  an  "action"  in  the  county  court,  for  all  the 
purposes  of  enforcing  it  by  execution,  and  the  proceedings  supplementary  to 
t  he  execution,  if  applicable  to  judgments  of  a  county  court  mus  also  be  to  judg- 
ments of  justiccs^of  the  peace,  which  become  the  judgments  of  a  county  court. 


350  RETURN    OF   EXECUTION. 

isfied  in  whole  or  in  part.  It  is  sufficient  for  the 
purpose  of  giving  jurisdiction  to  the  officer,  that  the 
execution  is  returned  unsatisfied,  and  the  judge  will 
not  look  into  the  case  to  see  if  the  return  is  true. 

And  after  the  return  of  an  execution  unsatisfied, 
the  judge  may  issue  the  order  at  any  time,  it  seems, 
within  ten  years  thereafter.   1  Barb.  Ch.  i?.,  589. 

It  is  not  necessary,  in  order  to  give  jurisdiction  to 
the  officer,  that  the  sheriff  should  retain  the  execu- 
tion during  the  whole  length  of  time  authorized  by 
the  statute  ;  but  where  the  sheriff  returned  the  exe- 
cution unsatisfied  within  thirty  days  from  its  issu- 
ing, it  was  held  that  it  was  enough  to  give  jurisdic- 
tion. Messenger  Y.  Fisk,  1  Code  Rep.,  106;  Simpkins  v. 
Paige,  Id.,  107.  (a.)  (See  contra  Shenoood  v.  Little- 
field,  1  Code  Rep.,  85. 

To  luhat  county  the  execution  must  have  been  issued. 1 — 
If  the  defendant  or  judgment  debtor  is  a  resident  of 
this  state,  the  execution  must  have  been  issued  to 
the   sheriff  of  the  county  where   the   defendant   or 

(a.)  In  addition  to  the  reasons  stated  in  the  opinion  of  the  judge  in  Messen- 
ger V.  Fisk,  it  may  be  mentioned  that  the  direction  to  return  the  exeution  is 
no  part  of  tlie  execution.  The  formal  part  of  the  execution  is  contained  in  § 
281),  and  tlie  subdivision  of  that  section.  All  that  it  is  necessary  to  put  in  the 
execution  is  contained  in  that  section;  then  follows  §  290,  which  is  a  direction 
to  the  sheriff  or  other  olTicer,  to  return  the  execution  within  sixty  days  after 
its  receipt.  No  part  of  such  direction  need  be  inserted  in  the  execution,  and 
hence,  it  is  merely  ilircctory  to  the  sheritT.  lie  may  retain  the  execution  the 
whole  length  of  the  time,  or  he  may  return  it  the  next  day  after  he  receives 
it.     The  responsibility  rests  with  the    sheriff,  and  he    is  liable  if  he   makes  a 

alse  return;  but  if  the  sheriff  has  already  had  executions  in  his  hands  against 
the  same  defendant,  which  he  has  been  obliged  to  return  unsatisfied,  it  would 
be  of  little  or  no  avail  to  retain  subsequent  executions  in  his  hands,  and  in 
such  case  he  is  authorized  to  return  tiicm  at  any  time  within  the  sixty  days. 
The  plaintiff  cannot  compel  a  return  within  that  time;  the  sheriff  may  retain 
the  execution  if  he  chooses,  the  object  of  the  law  being  to  give  the  officer  suf- 
ficient time  to  collect  the  execution  out  of  the  real  property  in  default  of  per- 
a  I  1  .  But  if  he  does  return  it  unsatisfied,  immediately  upon  its  receipt  by 
him,  it  will    give  the  judge  jurisdiction   to  issue  an   order  for  the  debtor  to 

appear  and  answer  concerning  his  property. 


WHO  MAY  GRANT  THE  ORDER.  351 

judgment  debtor  resides ;  or,  if  he  do  not  reside  in 
this  state,  the  execution  must  be  issued  to  the  sheriff 
of  the  county  where  the  judgment  roll  is  filed ;  or, 
if  the  judgment  be  one  rendered  in  a  justice's  court, 
to  the  sheriff  of  the  county  where  the  transcript  of 
the  justice's  judgment  is  filed.  And  it  would  seem, 
that  where  the  judgment  is  one  rendered  by  a  jus- 
tice of  the  peace,  a  transcript  must  be  filed  and  the 
execution  issued  out  of  the  county  court,  as  in  no 
other  case,  can  it  be  issued  to  the  sheriff. 

If  the  judgment  is  against  several  defendants,  the 
execution  must  of  course  be  issued  against  all;  but 
a  return  of  the  sheriff  that  the  defendants  have  no 
property  in  his  county,  is  all  that  is  required.  It 
is  not  necessary  to  issue  an  execution  to  the  several 
counties  in  which  the  defendants  respectively  reside, 
if  they  reside  in  different  counties,  unless  it  is  in- 
tended to  apply  for  an  order  against  such  defendants. 
Under  the  Revised  Statutes  (2  R  S.p.  L73,  §  3^)  it  was 
necessary  to  issue  an  execution  and  have  it  returned 
against  all  the  defendants,  before  the  bill  could  be 
filed.  The  language  of  the  Code  is,  where  the  ex- 
ecution against  the  property  of  the  judgment  debtor, 
or  of  any  one  of  several  debtors,  &c.,  is  returned,  &c. 

SECTION  II. 

Proceedings  to  Obtain  the  Order. 

Who  may  grant  the  order.'] — The  officers  who  are 
authorised  to  grant  an  order  requiring  a  judgment 
debtor  to  appear  and  answer  concerning  his  proper- 
ty, are  a  justice  of  the  Supreme  Court,  or  a  county 
judge  of  the   county  to  which   the  execution  was 


352  AFFIDAVIT    OF    FACTS    TO    OBTAIN    ORDER. 

issued.  Any  justice  of  the  Supreme  Court  has 
power  to  grant  the  order  in  any  case;  though  it  is 
presumed  that  a  justice  in  the  exercise  of  a  sound 
discretion  will  not  require  a  judgment  debtor  to 
appear  at  a  distance  from  his  residence,  but  will 
either  appoint  a  referee  residing  in  the  county  where 
the  judgment  debtor  lives,  to  take  and  report  the 
facts,  or  require  the  creditor  to  make  his  application 
to  a  county  judge.  Such  should,  and  doubtless, 
will  be  the  practice,  in  analogy  to  that  of  the  late 
Court  of  Chancery,  which  required  similar  refe- 
rences to  be  made  to  a  master  residing  in  the  county 
of  the  judgment  debtor. 

If  the  order  be  made  by  a  county  judge,  other 
than  that  to  which  the  execution  was  issued,  the 
proceedings  will  be  dismissed. 

Affidavit  of  facts,  to  obtain  order.] — For  the  purpose 
of  procuring  the  order  an  affidavit,  of  the  plaintiff 
or  judgment  creditor,  or  of  his  attorney,  or  of  any 
person  who  has  knowledge  of  the  facts,  must  be 
made.  The  affidavit  must  state  the  entering  of 
judgment  and  the  county  where  the  defendant  re- 
sides, or  if  he  is  a  non-resident,  the  county  in  which 
the  judgment  roll  is  filed;  this  being  necessary, 
that  the  county  judge,  in  case  the  application  for 
the  order  is  made  to  him,  may  see  that  he  has 
power  to  make  it.  It  must  also  shew  that  an  ex- 
ecution against  the  propertT/ of  the  judgment  debtor, 
or,  of  one  of  several  debtors,  in  case  the  judgment 
is  against  several  defendants,  has  been  issued  to 
the  sheriff  of  the  county  where  the  defendant  re- 
sides; or,  if  he  is  a  non-resident  of  this  state,  to  the 
sheriff  of  the  county  where  the  judgment  roll,   or 


THE  'ORDER    TO    APPEAR    AND    ANSWER.  353 

transcript  of  a  justice's  judgment,  is  filed;  and  that 
such  execution  has  been  returned  by  the  sheriff, 
imsatisfied  in  whole  or  in  part.  Code,  §  292. 

Upon  such  facts  appearing,  the  justice  or  county- 
judge  to  whom  the  application  is  made  is  authorized 
to  issue  the  order  requiring  the  judgment  debtor  to 
appear  before  him,  and  answer  concerning  his  prop- 
erty. 

It  is  not  necessary  to  state,  in  the  affidavit,  that 
the  debtor  has  property;  nor  need  that  fact  appear 
to  the  officer  who  makes  the  order:  his  jurisdiction 
being  complete  upon  being  furnished  with  proof  of 
the  issuing  and  return  of  the  execu'.ioi  unsatisfied 
in  whole  or  in  part,  {a.) 


(a)  It  is  understood  to  be  the  practice  of  some  of  the  county  judges  to  re- 
quire the  judgment  creditor  to  shew  by  his  affidavit  previous  to  making  the 
order,  that  the  debtor  has  property.  There  is  nothing  in  the  Code  requiring 
this,  and  the  object  of  the  proceeding  is  to  discover  property.  In  a  creditors' 
bill,  an  averment  that  the  debtor  had  property  was  necessary  to  give  the  court 
jurisdiction,  the  words  of  the  statute  being,  "that  the  value  of  the  defendant's 
property  exceeds  one  hundred  dollars."  2  Paige,  62.  But  for  no  purpose  of 
giving  jurisdiction  is  such  an  allegation  necessary  in  an  affidavit,  to  obtain  the 
order  under  the  Code;  the  jurisdiction  now  being  general  and  for  any  amount. 
Such  is  the  view  expressed  by  Hurlbut  J.  cited  in  a  note  to  1  Code  Rep.  107. 
The  error  in  this  practice  may  have  occurred  in  confounding  the  proceedings 
before,  with  those  auth  Tized  after  the  return  of  the  execution.  After  the  issu- 
ing and  before  the  return  of  an  execution,  upon  its  appearing  that  the  judg- 
ment debtor  has  property,  &c.,  the  judge  may  issue  the  order.  In  this  case  it 
must  be  shewn  that  the  debtor  has  property;  but,  afier  the  return  of  the  exe- 
cution, no  such  evidence  is  necessary  to  authorize  the  judge  to  grant  the  order. 
The  object  in  the  one  case  being  to  con>pel  the  debtor  to  apply  the  property  in 
his  possession,  which  is  not  subject  to  levy  and  sale  by  execution,  and  which 
he  unjustly  refuses  to  apply  to  the  satisfaction  of  the  debt,  at  any  time  when 
the  plaintiff  shews  that  he  has  such  property  and  refuses  to  apply  it;  and  the 
other  to  make  the  defendant  disclose  under  oath  the  property  if  any  that  he  has. 
The  former  is  simply  an  additional  remedy,  but  reqiires  dififerent  and  further 
proof  than  the  latter;  and  the  plaintiff  must  show  affirmatively,  that  the  debtor 
has  property,  which  must  be  specified  in  the  affidavit,  which  he  unjustly  refuses 
to  apply  towards  satisfaction  of  the  judgment.  But  in  the  latter  case  no  such 
allegation  is  necessary;  for  if  the  plaintiff  fcwcw  the  defendant  had  property  he 
would  not  need  the  aid  of  the  judge  in  reaching  it,  his  execution  being  suffi- 
(Cient  for  that  jpurpose. 

23 


354  THE   ORDER  TO    APPEAR    AND    ANSWER, 

And  in  this  proceeding  no  particular  amount  is 
necessary  to  be  due  on  the  judgment,  in  order  to 
give  jurisdiction  to  the  officer  who  grants  the  or- 
der. There  is  no  restriction  in  the  Code ;  and,  if 
any  amount  is  due,  it  will  be  sufficient  to  authorize 
the  proceeding. 

The  order  io  appear  and  answer. 1 — Upon  receiving  the 
affidavit  of  the  facts,  as  before  stated,  the  judge  to 
whom  the  application  is  made  will  make  an  order, 
requiring  the  judgment  debtor  to  appear  and  answer, 
concerning  his  property.  The  order  may  require  the 
debtor  to  appear  before  the  judge,  or  before  a  referee. 
In  case  a  referee  is  appointed,  which  may  be  done 
upon  the  agreement  of  the  parties,  or  by  the  appoint- 
ment of  the  judge,  it  is  his  duty  simply  to  take  and 
report  the  evidence  or  the  facts  to  the  judge.  Code^ 
§  oOO.  And  he  has  no  power  to  determine  any 
questions  of  law  in  the  matter,  not  even  to  exclude 
evidence  or  overrule  a  question.  Where  he  is  re- 
quired to  report  the  facts,  and  not  the  evidence,  he 
must,  of  course,  determine  the  facts  established  by 
the  evidence,  and  report  those  alone,  and  not  the 
evidence  of  such  facts.  The  order  of  reference, 
therefore,  may  be  to  report  the  whole  evidence,  or 
only  the  facts  established  by  the  evidence,  as  the 
judge  may  direct. 

Order  forbidding  a  transfer  of  property. 1 — Ordinarily 
it  is  proper,  at  the  time  of  applying  for  an  order 
requiring  the  judgment  debtor  to  appear  and  an- 
swer, also  to  obtain  from  the  judge  an  order  for- 
bidding the  transfer  or  other  disposition  of  the 
property  of  the  judgment  debtor,  not  exempt  from 
execution,  or  any  interference  therewith.  Code^ 
§  298.     The  judge  is  authorized  to  make  this  order 


THE    AFFIDAVIT.  355 

at  any  time,  and  it  should  be  made  in  the  first  in- 
stance ;  otherwise,  upon  the  service  of  the  order  to 
appear  and  answer  concerning  his  property,  the 
judgment  debtor  can  defeat  its  object  by  putting 
his  property  out  of  his  hands.  And  it  is  therefore 
right  that  the  debtor  in  such  cases  should  be  re- 
strained and  prevented,  as  far  as  the  court  has 
pow^er  to  do  so,  from  disposing  of  or  interfering  with 
his  property.  If  he  has  no  property,  the  order 
cannot  injure  him;  and  if  he  has  any,  the  creditor 
ought  to  be  allowed  to  restrain  him  from  disposing 
of  it,  as  one  means  of  securing  the  payment  of  his 
debt. 

No  additional  affidavit  is  necessary  to  obtain  this 
order;  but  it  is  made  of  course,  upon  the  facts 
which  authorize  the  making  of  the  first  order. 

IVarrant.] — If  there  is  danger  of  the  judgment 
debtor's  absconding,  the  order,  which  is  made  in 
ordinary  cases,  would  be  ineffectual  to  secure  his 
attendance  before  the  judge  or  referee,  to  be  ex- 
amined concerning  his  property,  as  disobedience  of 
such  order  can  only  be  punished,  as  for  a  contempt, 
and  the  debtor  in  the  mean  time  might  get  beyond 
the  reach  of  the  process  of  the  court  or  judge. 
Where  there  is  danger,  therefore,  that  the  debtor 
will  abscond,  an  application  should  be  made  to  the 
judge  for  a  warrant  to  arrest  him. 

The  affidavit.] — Before  the  judge  will  issue  such 
warrant,  it  must  be  shown  to  him  by  the  affidavit  of 
the  plaintiff"  or  judgment  creditor,  or  of  his  attorney, 
or  of  any  person  acquainted  with  the  facts,  that 
there  is  necessity  therefor.  As  respects  the  amount 
and  nature  of  the  evidence  required,  it  may,  in  gen- 
eral be  said,  that  it  rests  in  the  discretion  of  the 


356  ISSUING    WARRANT. 

judge ;  he  must  be  satisfied,  that  it  is  a  proper  case 
to  issue  the  warrant.  The  decisions,  under  the  act 
"of  attachments  against  absconding,  &c ,  debtors," 
(2  Rev.  Stat.  p.  2,)  will  however  be  safe  guides,  for 
the  judges  who  are  applied  to,  to  issue  the  warrant. 
Under  that  statute,  it  has  been  decided  that  the 
party  must  state  the  facts  and  circumstances  upon  which 
the  application  is  founded;  as,  that  the  defendant 
has  declared  his  intention  of  absconding  or  going 
abroad,  or  any  other  facts  indicating  such  intent; 
the  mere  belief  of  the  plaintiff,  is  not  sufficient.  14 
Wendell  237,  21  Id.  672. 

Issuing  warrant.] — Upon  receiving  the  necessary  af- 
fidavit of  the  facts  and  circumstances,  proving  that 
'Ihe  debtor  is  about  to  abscond,  the  judge,  if  he  is 
satisfied  that  there  is  danger  of  his  absconding,  will 
issue  a  warrant  under  his  hand,  requiring  the  sheriff 
of  any  county  where  such  debtor  may  be,  to  arrest 
him  and  bring  him  before  such  judge.  Upon  such 
warrant  being  delivered  to  the  sheriff,  it  is  his  duty 
to  arrest  the  debtor,  and  forthwith  bring  him  before 
the  judge.   Code  {  292. 

The  undertaking.] — In  order  to  be  discharged  from 
such  arrest,  the  debtor  must  enter  into  an  underta- 
king with  one  or  more  sureties,  that  he  will  attend 
from  time  to  time,  before  the  judge  or  referee,  as  the 
judge  shall  direct,  during  the  pendency  of  the  pro- 
ceedings, and  until  the  final  determination  thereof, 
and  will  not  in  the  mean  time,  dispose  of  any  por- 
tion of  his  property,  not  exempt  from  execution. 
Upon  giving  such  an  undertaking  to  the  judge,  he 
will  order  the  sheriiTto  discharge  him  from  custody. 

If,  however,  the  debtor  does  not  enter  into  the  un- 


EXAMINATION  OF  THE  DEBTOR,  AND    WITNESSES.      357 

dertaking,  the  judge,  by  a  warrant  under  his  hand, 
will  commit  the  debtor  to  prison.     Code  §  292. 

Service  of  orders.'] — Tiie  order  for  the  judgment  debt- 
or to  appear  and  answer,  and  the  order  forbidding  a 
transfer  or  other  disposition  of  his  property,  must  be 
served  upon  the  judgment  debtor,  and  not  upon  his 
attorney.  The  order  being  in  the  nature  of  process 
which  must  in  all  cases  be  served  upon  the  party. 
Code  §  418. 

The  service  is  made  by  delivering  to  such  debtor 
personally,  a  copy  of  the  orders  and  showing  him  the 
originals  subscribed  by  the  judge. 

If,  after  being  served  with  the  orders  the  debtor 
disobeys  them  or  any  of  them,  he  may  be  punished 
by  the  judge  as  for  a  contempt.     Code  §  302. 

SECTION   III. 

Of    the    EXAMINATION    OF    THE  DeBTOR,    AND    WITNESSES. 

Debtor.'] — When  the  debtor  appears  before  the  judge 
or  referee,  the  plaintiff  or  judgment  creditor,  or  his 
counsel  may  proceed  to  examine  him.  The  object 
of  the  proceeding,  being  to  obtain  a  disclosure  of  the 
property,  effects,  choses  and  things  in  action  of  the 
judgment  debtor  which  the  plaintiff  has  been  una- 
ble to  reach  by  execution,  the  mode  of  the  examina- 
tion and  the  extent  to  which  it  may  be  pursued,  will, 
in  general,  be  controlled  by  the  facts  and  circum- 
stances of  each  case,  and  therefore  no  particular  rules 
can  be  stated  to  guide  the  investigation.  The  exam- 
ination of  the  debtor,  is  conducted  after  the  manner 
of  a  cross  examination  of  a  witness,  upon  the  princi- 
ple that  he  is  unwilling  to  testify  to  his  own  preju- 
dice.    Hence  great  latitude  is  given  to  the  examin- 


358       EXAMINATION  OF   THE  DEBTOR  AND  WITNESSES. 

ing  counsel.  He  may  ask  leading  questions,  inves- 
tigate the  transactions  and  affairs  of  the  debtor  for  a 
series  of  years;  compel  him  to  answer  in  relation  to 
the  disposition  of  any  property,  and  the  application 
of  the  avails  thereof.  In  short,  the  creditor  is  enti- 
tled to  a  full,  stringent,  scrutinizing  examination 
into  the  affairs  business  and  property  of  the  debtor, 
in  order  to  discover,  if  he  can,  any  thing  which  ought 
to  be  applied  in  satisfaction  of  his  debt.  And  it 
would  seem,  that  where  a  debtor  refuses  to  answer 
questions  which  are  relevant  and  proper  to  the  sub- 
ject matter  of  the  inquiry,  he  may  be  punished  as 
for  a  contempt.  Code,  §  302.  7  Paige  278.  Th& 
debtor  may  have  counsel,  who  may  object  to  impro- 
per questions  and  insist  that  the  examination  shall 
be  conducted  according  to  the  usual  rules  of  evi- 
dence, but  he  has  no  right  to  cross  examine  the 
debtor.  The  examination  being  like  that  of  a  bank- 
rupt or  of  a  defendant  upon  interrogatories,  under 
the  old  chancery  practice,  or  of  a  party  at  the  trial, 
the  debtor  cannot,  as  in  those  cases,  be  cross  exam- 
ined by  his  own  counsel.  He  may  correct  any 
statements  made  by  him,  and  correct  and  explain 
his  own  testimony,  either  at  the  time  the  examina- 
tion is  going  on,  or  after  it  is  closed,  but  he  cannot 
be  examined  in  his  own  behalf 

The  examination  must  be  taken  down  by  the 
judge  or  referee,  and  where  it  is  taken  by  a  referee, 
it  should  be  subscribed  by  the  debtor,  and  in  either 
case  the  examination  should  be  read  over  to  the 
debtor,  to  enable  him  to  correct  any  part  of  the 
evidence  if  he  shall  desire  to  do. 

The  examination  must  be  on  oath. 

Examination  of  witnesses.] — In  addition  to  the  ex- 


CERTIFYING   EXAMINATION.  359 

"?imination  of  the  debtor,  the  plaintiff  or  judgment 
creditor  may  examine  witnesses  before  the  judge, 
touching  the  properly  of  the  judgment  debtor.  The 
attendance  of  the  witnesses  is  enforced  by  a  sum- 
mons, subscribed  by  the  judge,  and  they  are  required 
to  testify  in  the  same  manner  as  upon  the  trial  of  an 
issue.  The  examination  of  witnesses  is  conducted  in 
all  respects  as  it  is  upon  the  trial  of  a  cause,  and 
the  counsel  for  the  debtor  may  in  like  manner  cross- 
examine  them.  Their  examination  must  be  on 
oath;  it  must  be  read  to  them,  to  enable  them  to 
correct  any  part  of  it  if  they  shall  wish  to  do  so; 
and  where  the  examination  is  taken  by  a  referee,  it 
should  be  subscribed  by  the  witnesses,  although  that 
is  not  absolutely  necessary. 

The  debtor  may  examine  witnesses  on  his  own 
behalf,  to  disprove  the  evidence  of  the  witnesses 
examined  on  the  part  of  the  judgment  creditor;  and 
for  such  purpose  may  enforce  their  attendance  be- 
fore the  judge  or  referee,  in  like  manner  as  other 
witnesses.  Code  §5  295,  296. 

Certifi/ing  examination.] — If  the  examination  of  the 
debtor  and  witnesses  be  taken  before  a  referee,  he 
must  certify  it  to  the  judge  who  granted  the  order. 

If  the  referee  is  required  by  the  order  of  reference 

'to  report  the  facts  merely,  (Code,  §  300,)  and  not  the 

evidence,  he  must  determine  the  facts  established 

by  the  evidence,  and  report  such  facts  to  the  judge. 

Upon  receiving  the  report  of  the  referee,  the  judge 
will  proceed  to  hear  counsel  upon  the  facts  or  the 
evidence,  as  disclosed  in  the  report  of  the  referee, 
and  will  assign  a  day  for  that  purpose. 


360  PROCEEDINGS    AFTER    EXAMINATION    CLOSEI>'. 

SECTION  IV. 

Pj.oceedings  after  Examination  is  Closed. 

Order  to  apply  property  towards  satisfaction  of  the  judg- 
ment.^— If  tl  e  judgment  debtor  upon  his  examination 
has  disclosed  that  he  has  property  in  his  possession 
or  under  his  control,  that  is  not  exempt  from  execu- 
tion; or,  if  from  the  examination  of  witnesses  it  has 
been  proved  that  he  has  such  property,  the  judge 
will  make  an  order  that  such  debtor  deliver  over  the 
same,  if  in  his  own  hands;  or,  if  in  the  hands  of  an- 
other person,  or  due  to  the  judgment  debtor,  that 
such  person  deliver  the  same  or  pay  the  sum  due, 
to  be  applied  towards  satisfaction  of  the  judgment. 
Code,  §  297. 

If  however,  it  appears  that  a  person,  other  than 
the   debtor,   or  a  corporation,   has  property  of  the 
judgment  debtor,  or  is  indebted  to  him,  and  claims 
an  interest  in  such  property  adverse  to  him,  or  de- 
nies the  debt,  the  judge  cannot  make  an  order  for 
the  delivery  of  such  property  or  the  payment  of  such 
debt;  such  property  or  debt  being  recoverable  only 
in  an  action  against  such  person  or  corporation  by 
the  receiver.     Code,  §  299.     But   in  such  case,   the 
judge  may  make  an  order  forbidding  a  transfer  or 
other  disposition  of  such  property  or  interest,  until 
a  sufficient  opportunity  is  given  to  the  receiver  to 
commence  the  action,  and  prosecute  the  same  to 
judgment  and  execution.     Id.     Such  order  may  at 
any  time  afterwards  be  modified  or  dissolved  by  the 
judge  granting  the  same,  on  giving  such  security  as 
he  may  direct.     Id. 


RECEIVER.  361 

The  order  for  the  judgment  debtor  to  delirer  over 
property,  can  relate  only  to  such  property  as  is  in 
his  actual  possession,  or  so  far  under  his  control  that 
he  can  make  delivery  of  it  to  the  receiver.  For,  as 
has  been  stated,  if  another  person  who  has  the  pos- 
session of  it  claims  an  interest  in  it,  the  receiver 
must  bring  an  action  to  recover  it;  and  where  the 
judgment  debtor  is  thus  ordered  to  deliver  property,  or 
where  another  person  is  ordered  to  deliver  property 
or  pay  a  sum  due  to  the  judgment  debtor,  to  be  ap- 
plied towards  satisfaction  of  the  judgment,  they  are 
respectively  obliged  to  obey  the  order,  and  may  be 
punished  for  their  disobedience  as  for  a  contempt. 
Code,  §  302.  The  judge  will  not  by  order  require  the 
delivery  to  the  receiver,  of  property  claimed  by  a 
person  other  than  the  judgment  debtor.  It  is  of  no 
consequence  upon  what  the  claim  arises,  the  judge 
cannot  in  this  proceeding  determine  the  rights  of 
other  persons,  who  claim  to  have  an  interest  in  the 
property.  Such  right  can  only  be  tested  in  an  action 
by  the  receiver. 

Receiver.] — The  judge  has  the  power  to  appoint  a 
receiver  of  the  property  and  effects  of  the  judgment 
debtor,  to  take  charge  of,  dispose  and  convert  the 
same  into  money,  and  apply  it  under  the  direction 
of  the  court,  towards  the  satisfaction  of  the  judg- 
ment. 

Although  there  is  no  express  statutory  provision  or 
rule  requiring  the  receiver  to  give  securi  y,  (under 
the  old  practice  it  was  required  by  the  191st  rule  of 
chancery,)  yet  the  judge  will,  ordinarily,  refuse  to 
appoint  any  person  receiver  unless  security  for  the 
faithful  discharge  of  the  trust  is  given.  It  may 
therefore  be  laid  down  in  practice  that  the  receiver 


362  POWERS   OF   RECEIVER. 

must  give  security.  The  amount  of  the  secur  ty 
must  be  fixed  by  the  judge,  and  will  be  regulated 
by  the  amount  or  value  of  the  property  that  is  to 
pass  into  the  iiands  of  the  receiver. 

The  security  is  a  bond  of  the  receiver,  with  suffi- 
cient sureties  to  be  approved  of  by  the  judge,  in  a 
penalty  fixed  by  the  judge,  conditioned  to  obey  the 
orders  of  the  court  in  relation  to  the  trust,  and  in 
all  respects  faithfully  to  discharge  the  duties  of  the 
trust. 

It  is  made  the  duty  of  the  judge  who  approves 
the  security,  to  require  the  sureties  to  justify,  {Ride 
76,)  which  is  done  by  an  affidavit  endorsed  upon 
the  bond.  And  in  his  certificate  of  approval,  he 
must  state  that  each  person  ofFtred  as  security  is 
worth  the  requisite  amount,  over  and  above  all 
debts  and  responsibilities  which  he  owes  or  has 
incurred. 

The  bond  of  the  receiver  must  be  proved  or  ac- 
knowledged in  the  same  manner  prescribed  by  law 
for  the  proof  or  acknowledgment  of  deeds  of  re  al 
estate,  before  it  shall  be  received  or  filed.  Rule  76. 

Powers  of  receiver.'] — The  authority  of  a  receiver, 
appointed  by  a  judge,  is  the  same  as  if  he  were 
appointed  by  the  court,  in  pursuance  of  the  power 
contained  in  §  244  of  the  Code,  which  authorizes 
the  court  to  appoint  receivers,  according  to  the 
(then)  existing  practice  of  the  court. 

The  receiver  of  the  property  and  effects  of  the 
debtor,  unless  restricted  by  the  special  order  of  the 
judge,  has  general  power  and  authority  to  sue  for 
and  collect  all  ihe  debts,  demands,  and  rents  be- 
longing to  such  debtor,  and  to  compromise  and 
settle  such  as  are  unsafe  and  of  a  doubtful   cha- 


DUTY    OF   RECEIVER.  363 

racter.  He  may  also  sue  in  tlie  name  of  the 
debtor,  where  it  is  proper  or  necessary  for  him  to 
do  so ;  and  he  may  apply  for  an  order,  of  course, 
that  the  tenants  of  any  real  estate  belonging  to  the 
debtor,  or  of  which  he  is  entitled  to  the  rents  and 
profits,  attorn  to  such  receiver,  and  pay  their  rents 
to  him.  He  may  also  be  permitted  to  make  leases, 
from  time  to  time,  as  may  be  necessary,  for  terms 
not  exceeding  one  year.  Rule  81.  He  may  also 
sell  desperate  debts,  and  all  other  doubtful  claims 
to  personal  property,  at  public  auction,  giving  at 
least  ten  days'  public  notice  of  the  time  and  place 
of  such  sale.  Rule  81. 

The  receiver  also  has  authority  to  bring  an  action 
to  recover  property  claimed  to  belong  to  the  debtor, 
and  held  by  another  person.  Code  §  299.  And  gen- 
erally, to  collect  the  property  of  the  judgment  debtor 
and  convert  it  into  money. 

Duty  of  receiver.] — It  is  the  duty  of  the  receiver, 
without  any  unreasonable  delay,  to  convert  all  the 
personal  estate  and  effects  of  the  debtor  into  money; 
he  has  power  to  sell  any  real  estate  of  the  debtor, 
and  convert  the  same  into  money  {a).     He  has  no 

(o)  The  81st  rule  is  a  copy  of  the  i34th  Equity  rule  of  the  Supreme  Court. 
The  language  is  "  but  he  (the  receiver)  shall  not  sell  any  real  estate  of  the 
debtor  without  the  special  order  of  the  court,  until  after  a  judgment  in  the  cause." 
In  the  old  rule,  it  was  "  until  after  a  final  decree  in  the  cause."  There  is  evi- 
dently a  mistake  in  that  part  of  the  new  rule;  the  practice  formerly  in  these 
cases  was  to  file  a  bill  and  obtain  a  decree.  The  receiver  was  appointed  in 
the  first  stages  of  the  suit,  and  in  all  cases  before  the  decree,  except  where  the 
consent  was  given  under  the  133d  Equity  rule.  Hence,  there  was  a  propriety 
in  restricting  the  sale  of  the  liebtor's  real  estate  until  a  decree  had  been  obtain- 
ed against  him,  for  the  creditor  might  fail  of  getting  a  decree.  Now,  however, 
there  is  no  decree  or  judgment,  but  a  simple  order  of  the  judge,  requiring  the 
debtor  to  apply  liis  property  towards  satisfaction  of  the  judgment.  The  recei- 
ver is  appointed  after  the  examination  is  closed  and  after  the  order  is  made. 
Hence  there  is  no  propriety  in  restricting  the  powers  of  the  receiver,  in  sell- 
ing the  real  property  of  the  debtor,  without  the  special  order  of  the  court, 
''until  afier  judgment  in  the  cause."  Doubtles  the  rule  will  receive  such 
construction. 


864  COSTS. 

right  to  institute  suits  against  persons  known  to  be  in- 
solvent, and  from  whom  he  would  be  unable  to  col- 
lect his  cost,  unless  such  suit  is  brought  by  order  of  the 
court,  or  by  the  consent  of  all  persons  interested  in 
the  funds  in  his  hands.  Rule  81.  If  such  suits  are 
brought  without  such  order  or  consent,  the  receiver 
will  not  be  allowed,  for  the  costs  of  the  suit,  to  be 
paid  out  of  the  funds  in  his  hands.  Id. 

No  order  is  required  now  for  the  receiver  to  pay 
over  the  money  in  his  hands  to  the  judgment  credi- 
tors; but  after  satisfying  the  judgment,  the  costs  of 
the  proceedings,  and  his  fees,  commissions,  and  ex- 
penses, the  receiver  must  account  to  the  j  idgment 
debtor  for  the  balance,  if  any. 

It  is  not  necessary  for  the  judgment  debtor  to  ex- 
ectite  a  formal  assignment  to  the  receiver;  the  or- 
der directing  the  application  of  the  property,  together 
with  the  appointment  of  the  receiver,  is  sufficient  to 
vest  in  him  all  the  rights  of  action,  equitable  inter- 
terests,  and  properly  of  the  debtor;  and  he  is  author- 
ized, by  Rule  81,  to  prosecute  all  suits  in  relation 
thereto,  unless  expressly  restricted  in  the  order  ap- 
pointing him.  Formerly,  an  assignment  was  neces- 
sary, for  the  reason  that  it  was  the  evidence  of  the 
receiver's  authority,  as  the  order  appointing  him  was 
simply  entered  with  the  clerk.  Now,  however,  the 
appointment  is  made  by  the  judge,  and  the  order 
conferring  the  authority  is  under  the  hand  of  the 
judge,  and  is  the  only  evidence  required  by  the  re- 
ceiver of  his  right  to  take,  collect,  and  sue  for  the 
property  of  the  judgment  debtor. 

Costs.'] — The  costs  are  entirely  at  the  discretion  of 
the  judge.  He  may  allow  the  creditor  a  sum  not  ex- 
ceeding thirty  dollars,  besides  his  witnesses' fees  and 


PROCEEDINGS    AFTER    THE   ISSUE.  365 

disbursements,  to  be  paid  out  of  the  property  of  the 
judgment  debtor;  and  he  may  allow  a  like  sum  to 
the  judgment  debtor,  in  case  he  discloses  no  prope;ty 
upon  the  examination.  But  where  the  judgment 
debtor  is  allowed  costs,  it  will  be  directed  to  be  de- 
ducted from  the  judgment. 

A  witness,  however,  who  is  examined  as  such,  is 
not  entitled  to  costs,  the  provision  being  confined  to 
parties  who  are  brought  before  the  judge  by  order  to 
appear  and  answer.  Code,  §  301.  But  a  witness  is 
entitled  to  his  fees  for  travel  and  attendance,  in  the 
same  manner  and  to  the  same  extent  as  witnesses 
who  are  subpoenaed  to  attend  a  trial  at  the  circuit. 

SECTION  V. 

Of  Proceedings  after  the  Issuing  and  before  the  Re- 
turn OF  an  Execution. 

In  addition  to  the  remedies  given  after  an  execu- 
tion against  the  property  of  a  judgment  debtor  has 
been  returned  unsatisfied  in  whole  or  in  part,  it  is 
provided,  that  after  the  issuing  of  an  execution 
against  the  property  of  the  debtor,  the  creditor  may 
procure  an  order  from  a  justice  of  this  court,  or  a 
county  judge,  requiring  the  judgment  debtor  to  ap- 
pear at  a  specified  time  and  place,  to  answer  con- 
cerning his  property.  Code  §  292. 

To  obtain  this  order,  the  plaintiff  or  his  attorney, 
or  other  person,  must  make  an  affidavit  showing  that 
the  judgment  debtor  has  property  that  he  unjustly  re- 
fuses to  apply  towards  the  satisfaction  of  the  judg- 
ment. And  it  seems  that  the  affidavit  must  show 
positively,  that  the  debtor  has  the  property,  which 


866  PROCEEDINGS    AFTER    THE    ISSUE. 

should  be  ilescribed,  if  the  same  can  be,  and  which 
he  refuses  to  apply.  It  is  not  enough,  that  the  party- 
swears  to  a  belief  merely.  The  judge  is  to  be  satisfi- 
ed, and  the  facts  therefore  must  be  stated. 

Again.  It  is  provided  that  after  the  issuing  or  re- 
turn of  an  execution  against  property  of  the  judg- 
ment debtor,  or  any  one  of  several  debtors  in  the 
same  judgment,  the  creditor  may  procure  an  order 
requiring  any  person  or  corporation  having  property 
of  the  judgment  debtor,  or  who  is  indebted  to  him 
in  an  amount  exceeding  ten  dollars,  to  appear  at  a 
specified  time  and  place,  and  answer  concerning  the 
same. 

The  order,  however,  will  not  be  granted  except 
upon  an  affidavit  stating  that  such  person,  or  corpo- 
ration has  property  belonging  to  such  judgment  debt- 
or, or  is  indebted  to  him  in  an  amount  exceeding 
ten  dollars.   Code  §  294. 

The  affidavit  ] — The  affidavit  required  to  procure  an 
order  for  such  person  or  corporation  to  appear  and 
answer,  must  be  full  and  explicit  upon  the  subject 
of  the  property,  or  the  debt  which  belongs  or  is  due 
to  the  judgment  debtor.  Hence,  it  should  describe 
the  property;  as,  a  promissory  note,  made  by  A.  B., 
for  the  sum  of  five  hundred  dollars;  or,  a  bond  and 
mortgage,  dated  the  ninth  day  of  July,  1848,  for  the 
sum  of  one  thousand  dollars,  made  by  E.  F.  to  one  J. 
K,  and  assigned  to  the  judgment  debtor;  or,  that  C. 
D.  is  indebted  to  the  judgment  debtor,  in  the  sum 
of  two  hundred  dollars,  or  book  account  for  goods 
sold,  or  for  work  and  labor  performed,  and  the  like. 
It  is  not  necessary  to  state  in  the  affidavit,  that  such 
person  or  corporation  has  refused  to  apply  such  pro- 
perty or  pay  such  debt,  towards  satisfying  the  judg- 


THE    ORDER.  367 

ment;  such  allegation  being  necessary  only  when  the 
order  is  obtained  against  the  judgment  debtor,  be- 
f)re  the  return  of  the  execution  'Where  property  is 
claimed  to  be  in  the  hands  of  such  person  orvcorpo- 
ration,  belonging  to  the  judgment  debtor,  its  value 
need  not  be  stated  in  the  affidavit.  It  is  only  when 
there  is  a  debt  due  from  such  person  or  corporation 
to  the  judgment  debtor,  that  its  amount  must  be 
stated  in  the  affidavit,  and  it  must  appear  to  exceed 
ten  dollars. 

The  order.] — Upon  receiving  the  affidavit,  the 
judge  will  make  an  order  requiring  the  person  or 
corporation,  alleged  to  have  property  of,  or  to  be  in- 
debted to  the  judgment  debtor,  to  appear  before  him 
to  answer  concerning  such  property  or  indebtness. 
A  copy  of  the  order  must  be  served  upon  the  person 
or  corporation  named  in  it,  and  the  original  shown 
to  the  person  on  whom  the  service  is  made.  The 
service  of  the  order  upon  a  corporation,  is  made  by 
delivering  the  copy  order  to  the  president  or  other 
head  of  the  corporation,  secretary,  cashier,  or  mana- 
ging agent  thereof  Code  §  134,  sub.  1.  The  service 
of  the  order  must  be  personal.  Code  §  418. 

Order  forbidding  transfer.] — At  the  time  of  granting 
the  order  for  such  person  or  corporation  to  appear 
and  answer,  concerning  property  belonging,  or  a 
debt  due  to  the  judgment  debtor,  the  judge  may 
also  make  an  order  forbidding  such  person  or  corpo- 
tion  making  any  transf.r  or  other  disposition  of  the 
property,  or  paying  the  debt,  or  in  any  way  inter- 
fering therewith.  Code,  §  298.  Ordinarily,  it  is 
proper  to  obtain  this  order  in  the  first  instance,  and 
serve  it  with  the  order  to  appear  and  answer.  Oth- 
erwise, the  person  or    corporation   may  dispose  of 


368        ORDER  TO  APPLY  THE  PROPERTY. 

the  property  or  pay  the  debt,  before  an  order  is  ob- 
tained for  the  application  of  it  towards  satisfaction 
of  the  jiidgrnent.  This  order  must  be  served  in  the 
same  manner  that  the  order  to  appear  and  answer 
is  required  to  be  served. 

At  the  time  of  applying  for  the  order,  the  judge 
may  require  notice  thereof  to  be  given  to  the  judg- 
ment debtor,  in  such  manner  as  he  may  deem 
proper. 

The  proceedings  before  the  judge  or  referee  are 
conducted  in  the  same  manner  as  in  cases  of  orders 
made  after  the  return  of  an  execution,  as  pre- 
scribed in  the  previous  sections  of  this  chapter. 
These  being  merely  additional  remedies,  and  the 
practice,  after  the  order  to  appear  and  answer,  be- 
ing in  all  respects  the  same  as  has  been  stated  in 
"respect  to  orders  made  upon  the  return  of  an  execu- 
tion unsatisfied  in  whole  or  in  part,  it  will  be  suffi- 
cient to  refer  to  the  four  previous  sections  of  this 
chapter,  for  the  practice  in  regard  to  conducting  the 
examination  of  witnesses  and  the  other  proceedings 
upon  the  order. 

Order  to  apphj  the  property  or  pay  the  debt  ] — Upon 
the  determination  of  the  examination  of  the  person 
or  corporation  alleged  to  have  property  of,  or  to  be 
indebted  to  the  judgment  debtor,  the  judge  may 
make  an  order  requiring  such  property  or  debt  to 
be  applied  towards  satisfaction  of  the  judgment.  If 
however  such  person  or  corporation  claims  an  in- 
terest in  the  property,  or  denies  the  debt,  the  judge 
cannot  make  an  order  for  its  application  to  the  judg- 
ment. In  such  case  the  only  way  in  which  it  can 
be  recovered  is  by  an    action  instituted   by  the  re- 


COSTS.  369 

ceiver,  which  he  may  do  of  course,  and  without  a 
special  order.  Code,  §  299.  Bat  the  judge  may  make 
an  order  forbidding  a  transfer  or  other  disposition  of 
such  property  or  interest,  until  sufficient  opportuni- 
ty is  given  to  the  receiver  to  commence  the  action 
and  prosecute  the  same  to  judgment  and  execution. 
Such  order  may  at  any  time  be  modified  or  dissolv- 
ed by  the  judge  granting  the  same,  on  such  security 
as  he  shall  direct.  Code,  §  29y. 

Costs^ — Costs  may  be  allowed  to  the  person  or 
corporation  who  appears  and  is  examined  under  the 
order  of  the  judge,  in  respect  to  property  alleged  to 
belong  to  or  a  debt  due  to  the  judgment  debtor.  The 
costs  are  in  the  discretion  of  the  judge,  and  when 
allowed,  cannot  exceed  thirty  doHars,  besides  wit- 
nesses fees  and  disbursements.  Ordinarilv,  such 
person  or  corporation  will  be  entitled  to  costs, 
as  the  creditor  has  no  right  to  require  third  persons 
to  appear  and  answer  concerning  such  property  or 
debt,  but  should  let  the  receiver  bring  his  suit  to 
recover  it.  And  especially  where  no  previous  de- 
mand is  made  to  have  the  property  or  debt  applied, 
the  person  examined  ought  to  be  allowed  costs. 

AVitnesses  are  only  allowed  their  fees  for  travel 
and  attendance.  They  are  not  parties.  (See  ante 
p.  365.) 


24 


CHAPTER  V. 

OF  SPECIAL  MOTIONS. 

There  is  no  branch  of  the  practice  that  requires 
more  astuteness,  quickness  of  thought,  and  care  in 
the  preparation,  than  in  making  and  resisting  spe- 
cial motions.  Being  made  upon  affidavits,  and  the 
opposing  party  resisting  upon  affidavits,  which  are 
not  read  until  the  argument  of  the  motion,  no  op- 
portunity is  afforded  for  preparation  or  examination 
of  the  facts  of  the  opposing  party. 

The  most  ordinary  special  motions  are  the  follow- 
ing: 

Motions  to  set  aside  summons. 

Motions  to  strike  out  irrelevant  or  redundant 
matter  in  a  pleading. 

Motions  to  st;ike  out  sham  answers  and  defences. 

Motions  for  judgment  on  account  of  the  frivolous- 
ness  of  demurrer,  answer  or  reply. 

Motions  for  leave  to  amend  a  pleading. 

Motions  to  change  place  of  trial. 

Motions  to  set  aside  an  inquest,  for  irregularity. 

Motions  for  a  reference. 

IMotions  to  compel  a  report  of  referees. 

Motions  for  security  for  costs. 

Motions  to  set  aside  inquisition  for  irregularity. 

Motions  for  a  commission. 

Motions  to  compel  a  ( iscovery  of  books,  papers,  &c. 


MOTIONS    FOR    JUDGMENT.  371 

Motions  for  judgment  of  dismissal  of  complaint 
for  not  proceeding  to  trial. 

Motions  for  readjustment  of  costs. 

Motions  for  leave  to  issue  execution,  after  five 
years. 

Motions  to  set  aside  a  non  suit. 

Motions  to  set  aside  a  verdict. 

Motions  to  set  aside  report  of  referees,  whenonly 
a  part  of  the  issue  is  reported  on. 

Motions  to  set  aside  judgment ;  or, 

Motions  to  set  aside  an  execution,  for  irregularity. 

Motions  to  vacate  a  rule  of  court  or  judge's  order. 

There  are  also  many  other  motions,  that  it  will 
in  practice,  be  necessary  to  make,  but  it  is  not  ne- 
cessary to  enumerate  them  here. 

Motions  for  judg?nent  in  cases  reserved  for  further  con- 
sideration.']— As  all  judgments  are  to  be  entered  by 
the  direction  of  a  single  judge,  and  not  by  three 
judges,  as  formerly,  the  practice  of  taking  a  verdict 
at  thc3  circuit,  subject  to  the  opinion  of  the  Supreme 
Court,  upon  a  case  to  be  made  containing  the  testi- 
mcny,  is  wholly  abrogated  by  the  Code.  There 
may,  however,  be  cases  in  which  the  judge  upon  the 
trial  by  a  jury,  is  in  doubt  as  to  the  judgment  which 
he  should  direct,  to  be  entered  upon  the  facts  as 
found  by  the  jury.  In  such  cases  the  judge  may 
reserve  the  case  for  argument  or  further  considera- 
tion, and  may  direct  a  case  to  be  made  and  settled 
in  the  same  manner  as  cases  to  set  aside  a  verdict. 
It  is  directed  by  rule  {Rule  31}  that  a  case  thus  re- 
served shall  I  e  heard  at  the  special  term.  It  there- 
fore becomes  a  motion  for  judgment  upon  the  ver- 
dict. 


372  JUDGMENT    UPON    SPECIAL    VERDICTS. 

Motions  for  judgment  itpon  spfcial  verdicts.] — There  are 
cases,  also,  where  the  jury  may,  under  the  directiorj 
of  the  judge,  render  a  "special  verdict;"  and  if  the 
judge  has  doubts  whether  upon  the  facts  as  found, 
the  plaintiff  or  the  defendant  is  entitled  to  the 
judgment,  he  may  in  like  manner  reserve  the  case 
for  argument  or  further  consideration,  and  may  hear 
counsel,  and  direct  that  the  special  verdict  be  drawn 
up  and  settled  in  the  same  manner  as  cases  to  set 
aside  a  non-suit  or  verdict. 

The  argument  upon  a  special  verdict  must  be 
heard  at  a  special  term;  and  this  also  becomes  a 
special  motion,  for  judgment  upon  the  verdict. 

Motions  to  set  aside  report  of  referees  when  only  part  of 
the  issue  is  reported  on] — There  are  also  cases  of  the 
reference  of  a  part  only  of  an  issue,  or  of  some  dis- 
tinct matter  not  involving  the  whole  subject  matter 
of  the  controversy.  In  sufh  case  a  motion  to  set 
aside  or  correct  or  send  back  such  report,  can  only 
be  made  at  the  special  term,  and  is  therefore  a  spe- 
cial motion. 

The  object  of  the  motion  in  cases  reserved  for 
argument  or  further  consideration,  and  of  special 
verdicts,  is  to  enable  the  judge  to  direct  the  proper 
judgment  to  be  entered.  And  hence  it  will  not, 
unless  expressly  directed  by  the  judge,  be  necessary 
to  make  a  formal  case  or  special  verdict,  inasmuch 
as  no  appeal  can  be  taken  until  the  judgment  is 
entered. 

In  motions,  however,  for  judgments  upon  special 
verdicts,  it  seems  the  special  verdict  must  be  drawn 
up  in  form,  and  settled  in  the  same  manner  as  a 
case  or  bill  of  exceptions  to  set  aside  a  verdict  or 
non-suit  is  required  to  be  settled.  See  ante,  p.  227» 


PREPARING    PAPERS.  373 

And  in  motions  to  set  aside,  modify,  or  send  back 
^  report  of  referees,  where  only  a  part  of  the  issue 
is  reported  on,  the  questions  are  presented  to  the 
court  upon  a  case,  which  must  be  made  and. settled 
in  the  same  manner  as  cases  to  set  aside  a  report 
of  referees  upon  the  whole  issue  are  directed  to  be 
made  and  settled.     See  ante,  p,  244. 

Preparing  papers.] — It  is  the  duty  of  the  plaintiff, 
in  all  cases  where  the  motion  is  for  judgment  upon 
a  special  verdict,  to  prepare  the  necessary  pnpers 
for  the  court.  In  cases  reserved  for  argument  or 
further  consideration,  the  party  on  whose  motion 
the  case  is  reserved  must  furnish  the  papers ;  and 
in  motions  to  set  aside,  modify,  or  send  back  a 
report  of  referees,  where  the  whole  issue  is  not  re- 
ported on,  the  papers  must  be  furnished  by  the  moAdng 
party.  Rule  31.  The  papers  to  be  furnished  are  a 
copy  of  the  ease,  which  of  course  includes  the 
pleadings;  a  copy  of  the  special  verdict;  report  of 
referees ;  and  so  much  of  the  evidence  as  is  neces- 
sary to  present  the  questions  intended  to  be  raised 
upon  the  motion.  Rule  31. 

The  case  and  papers  need  not  be  printed. 

Serving  papers.] — The  party  whose  duty  it  is  to 
furnish  the  papers  to  the  court,  must  serve  a  co- 
py upon  the  opposite  party  at  least  eight  days  be- 
fore the  term  at  which  the  motion  may  be  made. 
If  such  papers  are  not  served,  the  opposite  party 
may  move  on  affidavit  and  notice  of  motion,  that 
the  cause  be  struck  from  the  calendar,  (whichever 
party  may  have  noticed  it  for  argument,)  and  that 
judgment  be  rendered  in  his  favor.     Rule  31. 

Notice  of  argument.] — Either  party  may  notice  the 
motion  for  argument.     It  must  be   noticed   for  the 


374  MOTIONS    WHERE    MADE. 

first  day  of  the  term,  {Rule  31)  and  served  eight  days 
before  the  term.  The  notice  must  state  the  time 
and  place  of  the  motion,  and  the  nature  of  the  judg- 
ment or  relief  which  will  be  asked  for. 

Note  of  issue.\ — At  least  four  days  before  the  first 
day  of  the  term,  at  which  it  is  intended  to  make  the 
motion,  the  party  giving  the  notice  of  argument 
must  file  with  the  clerk  at  the  place  where  the  court 
is  to  be  held,  a  note  of  the  issue,  containing  the 
names  of  the  parties  and  of  their  respective  attor- 
neys, and  the  date  of  the  issue  and  the  nature  of 
the  question.  The  date  of  the  issue  will  be  the  time 
the  last  pleading  in  the  cause  was  served  or  re- 
ceived. 

With  the  exception  of  motions  for  judgment  upon 
a  special  verdict,  or  upon  a  case  reserved  or  motion 
to  set  aside,  modify,  or  send  back  a  report  of  re- 
ferees, special  or  non-enumerated  motions  are  made 
upon  petitions  or  affidavits.  Rule  42.  When  made 
upon  petition,  it  must  be  duly  verified,  by  the  oath 
of  the  part}^  to  the  elfect  that  he  believes  it  to  be 
true.  Id.  The  motions  or  questions  need  not  be 
put  upon  the  calendar,  nor  need  any  papers  be  fur- 
nished to  the  court.  The  affidavits  or  petitions  upon 
which  the  motion  is  made  or  resisted,  are  read  to 
the  court,  before  the  argument  of  counsel. 

Molio7is,  where  made.] — All  special  motions  must  be 
made  at  a  special  term,  exo  pt  that  in  the  city  of 
New- York,  a  motion  may  also  be  made  to  a  justice 
or  judge  at  his  chambers.  Motions  may  also  be 
made  at  the  general  terms,  on  the  first  day  of  the 
term,  on  Thursday  of  the  first  week,  and  on  Friday 
of  the  second  week  of  the  term,  immediately  after 


STAYING    PROCEEDINGS.  375 

the  opening  of  the  court  on  those  days.  Rule  3C. 
Motions  must  be  made  within  the  district  in  which 
the  action  is  pending,  or  in  a  county  adjoining  that 
in  which  it  is  pending,  and  cannot  be  made  else- 
where. In  the  city  of  New- York,  if  the  action  is 
triable  there,  the  motion  must  be  made  in  that  city, 
and  not  elsewhere. 

For  the  purpose  of  hearing  special  motions,  the 
court  are  authorised  {Code,  §  22)  to  designate  the 
times  and  places  of  holding  special  terms,  and  in 
pursuance  of  that  authority  the  judges  in  each  dis- 
trict have,  and  as  often  as  required  by  law  will,  de- 
signate in  their  respective  districts  the  times  and 
places  for  holding  the  special  terms. 

Motions  ivhefi  made.] — As  a  general  rule,  the  motion 
must  be  made  with  all  diligence  and  at  the  first  op- 
portunity that  is  afforded  after  the  matter  arose,  on 
which  it  is  founded.  And  if  not  made  at  as  early  a 
day  as  with  due  diligence  it  can  be,  an  excuse  must 
be  shown  for  the  neglect,  and  such  excuse  must  ap- 
pear in  the  motion  papers.  This  general  rule,  how- 
ever, applies  solely  to  motions  for  relief  for  irregida- 
rity  in  the  proceedings.  Where  the  relief  sought 
affects  the  real  and  substantial  rights  of  the  parties, 
the  rule  is  less  stringent  and  the  right  to  the  relief 
will  not  be  lost,  notwithstanding  there  has  been 
mtuch  delay  in  making  the  motion.  5  Wendell,  129. 
6  Hill,  234. 

Staying  proceedings.] — If  for  any  purpose  it  is 
necessary  to  stay  the  proceedings  of  the  opposite 
party,  in  order  to  make  the  motion,  an  application 
must  be  made  to  a  justice  of  the  court  or  to  a  county 
judge,  (Code,  §  403)  for  an  order  staying  proceedings 
until  the  decision  of  the  motion.     This  order  is  usu- 


376  AFFIDAVITS. 

ally  granted  upon  the  affidavits  and  papers  upon 
which  it  is  intended  to  make  the  motion,  and  is  en- 
dorsed upon  them. 

If  the  stay  of  proceedings  is  granted  ofler  verdict, 
it  must  be  made  by  a  justice  of  the  Supreme  Court, 
a  county  judge  has  no  power  to  stay  the  proceed- 
ings. Code  §  401. 

Nor  can  a  justice  of  the  Supreme  Court  or  county 
judge  out  of  court,  grant  a  stay  of  proceedings  for 
a  longer  period  than  tioenty  days,  except  the  opposite 
party  have  previous  notice  of  the  application  for  the 
stay. 

Affidavits.'] — The  party  intending  to  make  a  spe- 
cial motion  must  make  and  serve  on  the  opposite 
party  an  affidavit  of  the  facts  upon  which  the  mo- 
tion is  founded.  The  opposite  party  may  on  his 
part,  make  and  read  affidavits  in  opposition  to  the 
motion.  The  affidavits  of  the  moving  party  and  all 
papers  upon  which  the  motion  is  to  be  founded  must 
be  served  upon  the  opposite  party  the  same  length  of 
time  that  is  required  to  serve  the  notice  of  motion. 

The  affidavit  must  show  affirmatively  that  the 
motion  is  made  in  the  proper  county.  Schermerhom, 
v.  Develin,  1  Code  Rep.  13.  It  therefore  should  state 
the  county  in  which  the  action  is  triable. 

The  motion  may  be  founded  upon  a  petition  in- 
stead of  an  affidavit  {Rule  42,)  in  which  case  the 
petition  must  be  verified  by  the  oath  of  the  party,  to 
the  effi3ct  that  he  believes  it  to  be  true.     Id. 

Great  care  should  be  observed  in  preparing  the  af- 
fidavit or  the  petition  upon  which  to  make  a  special 
motion.  They  should  contain  all  the  facts  necessa- 
ry to  succeed,  and  as  far  as  possible  should  antici- 
pate and  controvert  what  may  be  sworn  to  on  the 


NOTICE  OF    MOTION.  377 

otluTside;  for  the  court  will  not  ordinarily  allow- 
any  additional  facts  to  be  supplied,  or  even  the  mo- 
tion to  stand  over  to  supply  them,  though  they  will 
sometimes  deny  the  motion  without  prejudice  to  the 
right  to  move  anew  upon  further  and  additional  affi- 
davits and  papers.  Thus,  in  a  motion  to  set  aside  a 
proceeding  for  irregularity,  it  should  appear  in  the 
affidavit  or  petition  upon  which  the  motion  is  foun- 
ded, that  diligence  has  been  used  in  taking  advan- 
tage of  the  irregularity,  and  that  the  motion  is  made 
at  the  earliest  practicable  day  after  the  irregularity 
was  discovered;  otherwise,  the  opp)sing affidavits 
may  show  that  the  irregularity  has  been  waived  by 
the  laches  of  the  party,  or  by  taking  some  subsequent 
step  in  the  cause,  after  the  defect  was  discovered  by 
him.  And  where  one  or  more  terms  have  elapsed 
since  the  irregularity  happened,  an  excuse  for  not 
moving  at  an  earlier  day  must  be  shown  in  the  mo- 
ving papers,  otherwise  the  motion  may  be  defeated 
by  showing  that  the  motion  is  not  made  at  the  first 
opportunity. 

Notice  of  motion.'] — The  motion  must  be  noticed  for 
the  first  day  of  the  special  term,  at  which  it  is  inten- 
ded to  make  it,  and  if  noticed  for  a  later  day,  an  ex- 
cuse therefor  must  be  contained  in  the  affidavit. 
Rule,  31.  The  notice  must  be  in  writing  {Code,  §  408) 
and  served  eight  days  before  the  time  appointed  for 
the  hearing.  Code,  §  402.  If  the  notice  be  short, 
that  is,  less  than  eight  days,  the  opposite  party  will 
be  entitled  to  the  costs  of  opposing.  9  Wtndcll,  450. 
An  admission  of  due  service  of  the  notice  will  preclude 
the  party  from  objecting  to  it  as  being  too  short. 
12  Id.  227. 

The  object  of  the  motion,  or  the  particular  relief 


378  MOTION. 

sought,  must  be  stated  in  the  notice,  and  it  is  al- 
ways well  to  add  at  the  conclusion  of  the  notice, 
"for  such  further  or  for  such  other  order  or  relief  as 
the  court  may  grant."  5  Hill,  518.  But  the  paity 
must  not  ask  for  more  than  he  is  entitled  to  ;  other- 
wise he  will  not  only  lose  his  costs  though  he  suc- 
ceeds in  his  motion,  but  may  be  compelled  to  pay 
the  costs  of  opposing.     1  Hovj.  Pr.R.  41.   6  Hill,  268. 

The  court  will  not  give  costs  to  the  moving  party 
unless  they  are  asked  for  in  the  notice  of  motion. 

Motion.'] — The  motion  is  argued  by  counsel.  Only 
one  counsel  on  each  side  will  be  heard ;  (Rule  74) 
the  opening  counsel  has  the  right  to  close  the  argu- 
ment. The  practice  of  arguing  special  motion,  is 
this:  The  counsel  for  the  moving  party  reads  the 
peition  or  affidavits  and  papers  upon  which  the  mo- 
tion is  founded.  The  counsel  for  the  opposing  par- 
ty then  reads  the  affidavits  and  papers  in  opposition 
to  the  motion.  The  motion  is  then  argued  pro  and 
con,  the  counsel  for  the  moving  party  closing  the 
argument. 

If  it  is  intended  to  take  any  objections  to  the  mo- 
tion of  a  merely  technical  character,  they  should  be 
raised  before  the  merits  of  the  motion  are  gone  into; 
otherwise  they  will  be  considered  as  waived  3 
Caines  R.  105. 

Rule  or  order.'] — The  court  having  decided  the  mo- 
tion, the  papers  on  both  sides  should  be  filed  with 
the  clerk.  The  rule  is  either  drawn  up  by  the  at- 
torney or  the  clerk,  and  entered  in  the  minutes.  In 
some  instances  where  the  rule  is  special,  it  should 
be  drawn  up  and  submitted  to  the  court  before  be- 
ing entered. 


OBTAINING    RULE    BY    DEFAULT.  379^ 

Get  a  certiiied  copy  of  the  rule  from  the  cleik  and 
serve  it  upon  the  opposite  attorney. 

Obtaining  rule  by  default.'] — If  the  party  upon  whom 
the  notice  of  motion  is  served  does  not  appear  to 
oppose,  the  moving  party,  upon  furnishing  to  the 
court,  proof  of  thn  due  service  of  the  notice  of  mo- 
tion and  papers  upon  which  it  is  founded,  may  take 
such  rule  as  he  asks  for  in  his  notice,  by  default.  In 
such  case,  however,  the  counsel  who  takes  the  mo- 
tion by  default,  must  endorse  upon  the  papers  his 
name.  Rule  29.  In  like  manner,  if  the  moving  party 
does  not  make  his  motion,  the  opposite  party,  at  the 
close  of  the  term,  may  enter  a  rule  denying  the  mo- 
tion with  costs. 

Costs.1 — The  costs  on  a  motion  are  in  the  discre- 
tion of  the  court.  When  allowed  to  either  party^ 
they  cannot  exceed  ten  dollars.  Code  §  315.  The 
general  rule  upon  the  subject  is,  that  when  a  pro- 
ceeding is  set  aside  for  irregularity,  the  party  who 
committed  the  irregularity  must  pay  costs.  But  if 
regular  proceedings  are  set  aside  as  a  favor  to  the 
other  party  ;  or,  where  a  party  is  permitted  to  amend 
a  pleading  or  proceeding,  the  ordinary  rule  is,  that 
such  party  must  pay  costs  to  the  other.  So  if  the 
moving  papers  are  defective  ;  or,  the  notice  is  too 
short,  the  failing  party  must  pay  costs.  9  Wendell 
450.  If  costs  are  not  asked  for,  the  moving  party 
will  not  be  entitled  to  them,  even  though  there  be 
no  one  to  oppose.  10  Wendell  603. 

Costs  when  payable.] — When  tlie  motion  is  granted 
or  denied  with  costs,  or  when  it  is  granted  upon 
payment  of  costs,  the  rule  or  order  requiring  such 
payment  must  be  served  upon  the  party.    And  where 


380  COSTS  HOW    COLLECTABLE. 

costs  to  be  adjusted  by  the  clerk  are  to  be  paid,  a 
copy  of  the  costs  as  adjusted  must  be  served  upon 
the  party  required  to  pay  them.  In  either  case  the 
party  has  twenty  days  after  serv'ce  of  the  copy  order 
or  copy  costs  to  pay  them  in;  and  no  process  can 
be  issued  for  their  collection  until  after  the  expiration 
of  such  time.  And  so  where  the  order  requires  the 
performance  of  a  condition,  or  of  some  act,  the  party 
has  twenty  days  to  perform  it  in,  after  the  service  of 
the  order.  And  when  it  is  intended  to  apply  for  an 
attach n  ent  to  punish,  as  for  a  contempt,  the  disobe- 
dience of  an  order,  to  perfi;rm  some  condition  or 
other  act,  other  than  the  payment  of  costs,  the  order 
must  be  served  personally  on  the  party. 

Cosfs  Iwiv  collectable. — If  the  costs  of  a  motion  are 
not  paid  within  the  time  limited  for  that  purpose, 
an  execution  may  be  issued  to  the  sheriff,  recit-ing  the 
motion  and  order,  and  commanding  him  to  collect 
the  same  out  of  the  personal  estate  of  the  party  liable 
to  pay  the  costs.  Laivs  1847,  chap.  390,  ^S  3.  For- 
merly, a  precept  or  attachment  was  isssued  against 
the  person,  and  he  might  be  imprisoned  ;  but  im- 
prisonment for  costs  was  abolished  in  1 8A7{Sess.  Laws, 
1847,  chap.  390,;?.  491,  §  2),  since  which  time  inter- 
locutory costs  can  only  be  collected  by  an  execution 
against  the  personal  property  of  the  person  liable  to 
pay  the  costs. 

The  execution  to  collect  the  costs  of  a  motion 
may  be  issued  at  any  time  after  the  expiration  of 
the  time  within  which  the  pavty  has  to  comply 
with  the  order.  If,  however,  it  is  not  issued  within 
five  years,  a  motion  for  leave  to  issue  it  must  be 
made  to  the  court.  The  execution  can  only  be 
collected   out  of  the  personal  estate  of  the   party, 


OKDERS  GRANTED  AT  CHAMBERS.         3B1 

and  it  is  not  a  lien  upon,  nor  can  it  be  collected  out  of 
the  real  property,  nor  can  they  be  included  in  the 
judgment. 

The  execution  may  be  issued  to  the  sime  coun- 
ties, is  subject  to  the  same  rules,  and  js  returnable 
within  the  same  time,  and  in  the  same  manner,  as 
executions  issued  upon  judgments    See  ante,  p.  221. 

The  court  will  sometimes  require  the  payment  of 
costs  as  a  condition  of  granting  relief,  as  tliat  the 
party  be  allowed  to  amend  a  pleading  or  proceed- 
ing, upon  payment  of  costs;  or,  that  the  defndant 
be  permitted  to  serve  his  answer,  upon  payment 
of  the  costs;  or,  that  a  regular  inquest  be  set  aside, 
upon  payment  of  costs;  or,  that  relief  of  any  kind 
be  granted  a  party,  upon  condition  that  he  pay  the 
costs  of  the  other  party.  In  such  cases,  the  party 
obtaining  the  order  or  relief  must  perform  the  con- 
dition, that  is,  pay  the  costs,  upon  their  being  made 
out  and  taxed,  when  they  are  to  be  taxed,  or  the 
amount  specified  in  the  order.  And  he  must  seek 
out  the  opposite  party,  and  pay  or  tender  the 
amount,  and  cannot  wait  until  they  are  demanded ; 
and  in  the  mean  time  proceed  by  serving  his  an- 
swer, or  amending  his  pleading  or  proceeding,  as 
the  case  may  be  ;  and  if  the  costs  are  not  paid 
within  the  time  allowed,  the  opposite  party  may 
proceed  to  obtain  judgment  or  a  dismissal  of  the 
complaint,  as  the  case  may  be,  and  is  not  driven  to 
issue  execution  to  collect  the  costs.  He  may 
waive  the  costs,  and  proceed  as  if  no  motion  had 
been  made. 

Orders  gronfcd  at  chatnbers.] — A    large    number  of 
orders  are  usually  required  to  be  made,  in  the  pro- 
gress of  a  cause,  by  a  judge   out  of  court.     Some 


382  ORDERS    GRANTED    AT    CHAMBERS. 

are  made  upon  notice  to  the  opposite  party,  and 
others  ex  parte,  and  without  notice ;  such  as  appli- 
cations for  attachments,  orders  to  arrest  defendants, 
for  injunctions,  for  stay  of  proceedings,  for  further 
bill  of  particulars,  and  the  like. 

It  is  provided  by  rule  that  if  an  application  for 
an  order  is  made  to  a  justice  of  the  court,  and  such 
order  is  refused  in  whole  or  in  part,  or  be  granted 
conditionally,  or  on  terms,  no  subsequent  applica- 
tion upon  the  same  state  of  facts  can  be  made  to 
any  other  justice.  Rule  87. 

If  a  subsequent  application  is  made  to  another 
justice  upon  the  same  state  of  facts,  and  he  makes 
an  order,  such  order  will  be  revoked.  Id. 

The  mode  of  procuring  a  revocation  of  the  se- 
cond order,  is  by  an  application  to  the  justice  who 
made  it,  or  by  a  special  motion  to  the  court.  In 
case  the  application  is  made  to  the  same  justice,  no 
notice  need  be  given  to  the  opposite  party,  unless 
directed  by  the  judge,  he  having  power  to  revoke 
his  own  orders,  without  notice.  Ordinarily,  notice 
to  the  opposite  party  will  be  required,  before  the  order 
will  be  revoked,  or  a  special  motion  can  be  made 
to  procure  such  revocation.  Notice  of  the  motion 
and  copies  of  the  papers  upon  which  the  motion  is 
founded,  must  be  served  as  in  other  special  motions. 

When  a  notice  of  motion  is  given,  or  an  order  to 
show  canse  is  returnable,  before  a  judge  out  of  court, 
and  at  the  time  fixed  for  the  motion  he  is  absent,  or 
unable  to  hear  it,  the  same  may  be  transferred  by 
his  order  to  some  other  judge,  before  whom  the  mo- 
tion might  originally  have  been  made.  Code,  §  404. 


CHAPTER  VI. 

OF  APPEALS  TO  THE  GENERAL  TERM  FROM  ORDERS 
MADE  AT  THE  SPECIAL  TERM  OR  BY  A  SINGLE 
JUDGE. 

The  decisions  made  at  the  special  term,  and  or- 
ders made  by  a  single  judge,  can  be  reviewed  at 
the  general  term,  only  in  certain  specified  cases. 

It  is  therefore  provided  {Code,  §349,)  that  an  ap- 
peal may  be  taken  from  an  order  made  by  a  single 
judge  of  the  same  court,  and  also  from  orders  made 
by  a  county  judge,  in  actions  in  (he  Supreme  Court 
{Code,  §  403,)  to  the  general  term  of  the  Supreme 
Court,  in  the  following  cases : 

1.  Where  the  order  grants  or  refuses  a  provisional 
remedy ; 

2.  When  it  involves  the  merits  of  the  action,  or 
some  part  thereof; 

3.  When  the  order  decides  a  question  of  practice, 
which  in  effect  determines  the  action  without  a 
trial,  or  precludes  an  appeal. 

4.  When  the  order  is  made  upon  a  summary  ap- 
plication in  an  action  after  judgment,  and  affects  a 
substantia]  right. 

The  orders  appealed  from  must  be  such  as  are 
made  at  the  special  term,  or  by  a  judge  out  of  court, 
and  includes  such  as  are  made  upon  notice.  Orders 
granted  ex  parte  are  not  appealable.  Where  the  or- 
der is  made  out  of  court,  it  must  be  entered  with 


384  APPEAL    WHEN    TAKEN. 

the  clerk  before  an  appeal  can  be  taken.  For  this 
purpose  the  party  desiring  to  appeal  may  require  the 
order  to  be  entered  with  the  clerk.   Code,  §  350. 

No  orders  made  at  a  special  term  or  by  a  judge 
other  than  those  above  specified,  can  be  reviewed  on 
appeal.  And  as  there  is  no  other  way  provided  for 
reviewing  orders,  it  seems  that  unless  the  order  is 
embraced  among  those  mentioned,  they  cannot  be 
reviewed  at  all.  Hence  the  decisions  and  orders 
made  at  the  special  term  luid  by  the  judges  out  of 
court,  in  a  great  variety  of  cases,  are  final  and  con- 
clusive, and  cannot  be  reviewed. 

This  is  confined  to  orders,  strictly  such,  for  there 
are  a  number  of  cases  which  may  be  heard  and  de- 
cided at  the  special  term,  which  are  afterwards  ap- 
pealable to  the  general  term,  such  as  motions  to  set 
aside  or  modify  a  report  of  referees,  where  the  re- 
port hi  upon  only  a  part  of  the  issue.  So,  in  cases 
of  motions  for  judgment  upon  special  verdicts,  or 
cases  reserved  on  the  trial  for  argument  or  further 
consideration ;  issues  of  law  as  provided  by  the 
Code ;  demurrers  to  pleadings  and  the  like,  which 
must  all  be  heard  at  the  special  term.  In  them  an 
appeal  may  be  taken  to  the  general  term.  For  in 
these  cases  a  judgfne?it  is  entered,  and  is  not  therefore 
an  order  But  where  a  report  of  referees  is  sent 
back  for  review  by  the  referees,  no  judgment  is  en- 
tered, but  an  ordtr  made  sending  the  report  back. 
No  appeal,  however,  can  be  taken  from  the  order,  un- 
less it  involves  the  merits  of  the  action. 

Appeal  when  taken  ] — An  appeal  from  an  order  made 
by  a  single  judge,  either  at  special  term  or  out  of 
court,  must  be  taken  within  thijii/  days  after  written 
notice  of  the  order  shall  have  been  received  by  the 


NOTICE    OF   APPEAL.  385 

party  intending  to  appeal.  Code,  §332.  The  only- 
way  therefore  of  lirnitino^  the  appeal  is  by  giving 
written  notice  of  the  order  to  the  opposite  party 

If  the  appeal  is  not  brought  within  the  thirty  days 
the  right  will  be  lost,  and  the  court  have  no  power 
to  extend  or  enlarge  the  time.  Code,  §  405. 

Notice  of  appeal.] — The  party  wishing  to  appeal 
from  an  order  must  prepare  a  notice  stating  that  he 
appeals  from  the  order  or  from  some  specified  part 
thereof  to  the  general  term.  The  order  appealed 
from  must  be  described  with  accuracy,  in  respect  to 
its  date,  names  of  parties  and  purport;  and  where 
the  appeal  is  from  a  part  of  the  order  only,  the  no- 
tice must  specify  particularly  the  part  appealed 
from. 

Serving  of  notice,] — The  notice  of  appeal  must  be 
served  upon  the  attorney  of  the  adverse  party,  and 
must  also  be  served  on  the  clerk  with  whom  the 
order  was  entered.  The  notice  is  served  like  other 
notices  in  the  cause.  See  post.  It  need  not  be  a 
personal  service,  but  may  be  by  mail  or  otherwise, 
as  in  the  case  of  other  notices.  It  must,  however, 
be  within  the  time  allowed  for  appealing. 

No  security  is  required  upon  an  appeal  from  an 
order,  to  the  general  term.  Hence  it  is  not  neces- 
sary to  execute  any  undertaking  as  in  cases  of  ap- 
peals from  judgments.  Nicholson  v.  Dunham  and  others^ 
1  Code  Rep.,  119.  (a.) 


(o)  An  opinion  has  prevailed  among  the  profession  to  a  considerable  extent, 
that  security  is  necessary  in  appeals  from  orders;  and  it  is  understood  that  some 
of  the  judges  have  so  decided.  I  have  not  found  any  case  reported,  holding 
such  to  be  the  construction  to  be  given  to  tiie  Code.    The  contrary  has  been 

25 


386  PAPERS    TO    BE    USED. 

Papers  to  be  used.'] — The  appeal  from  an  order,  is 
heard  upon  the  same  papers  that  were  used  upon 
the  argument,  before  the  special  term  or  judge  who 
made  the  order.  No  other  or  additional  papers  cai^ 
be  used.  As  has  been  before  stated  the  papers  on 
both  sides  upon  a  special  motion,  must  be  filed  with 
the  clerk  where  the  order  is  entered.  At  least  eight 
days  before  the  time  for  hearing  the  appeal,  a  cer- 
tified copy  of  the  papers,  order  appealed  from,  and 
notice  of  appeal,  should  be  procured  by  the  appel- 
lant from  the  clerk  and  a  copy  thereof  served  upon 
the  respondent  or  opposite  party,  {a) 

held  by  Mr.  Justice  Oakley  iy  the  case  cited  in  the  text-  It  is  true  the  opinion 
in  that  case  is  mere  dictum,  inasmuch  as  no  reasons  are  given.  Nevertheless,  as 
Vi  dictum,  coming  from  so  learned  and  able  a  judge,  it  is  entitled  to  great  weight 
and  respect.  But  I  think  that  upon  a  careful  and  scrutinizing  examination  of 
the  Code,  it  will  be  manifest  that  it  was  not  the  intention  of  the  Legislature 
to  require  security  in  such  cases. 

The  language  is  (  §  348,)  "  In  the  Supreme  Court,  &c.  an  appeal  upon  the 
law  may  be  taken  to  the  general  term,  from  a  judgment,.  &e."  but  to  make  the- 
appeal  effectual,  security  must  be  given.  Then  follows  §  349,  "^an  appeal  may 
in  like  manner,  and  within  the  same  time  be  taken  from  an  order,"  &c.  Now  the 
words  "in  like  manner,"  refer  to  the  subjict  matter  of  the  appeal,  that  is,  that 
it  may  be  taken  "  upon  the  law"  and  has  no  reference  to  the  security  to  be 
given  upon  appeals  from  judgments.  The  security  to  be  given  in  appeals  from 
judgments,  is  an  undertaking  in  the  sum  of  two  hundred  and  fifty  dollars,  and 
it  can  scarcely  be  supposed  that  security  in  that  amount  would  be  required  in 
appeals  from  interlocutory  orders.  The  entire  spirit  and  intent  of  the  Code  in 
requiring  security  in  appeal  from  judgments,  is  at  war  with  the  idea  that  it  is 
required  in  appeals  from  oitlers.  The  object  of  the  security  is  to  stay  the  pro- 
ceedings and  wherever  the  undertaking  is  spoken  of,  it  is  in  reference  to 
the  juds^inent.  Appeals  from  orders  are  heard  as  motions,  upon  the  same  papers 
used  before  the  juilge ;  no  copies  are  required  for  the  judges  and  they  are  usually 
speedily  disposed  of,  taken  up  on  the  motion  days,  in  term,  and  heard  as  inter- 
locutory motions  are  heard  ;  and  there  is  therefore,  nothing  in  the  nature  of 
the  appeal  or  the  manner  of  conducting  it,  that  would  seem  to  require  security. 
It  has  been  ilecUletl  that  ihe  costs  upon  ajjpeals  from  orders  cannot  exceed  ten 
dollars,  {Savage  v.  Darrov,  4  How.  Pr.  R  74,)  and  are  in  the  discretion  of  the 
court,  hence  security  in  the  sum,  of  two  hundred  and  fifty  dollars,  with  sure- 
ties to  justify  in  double  the  amount,  would  be  excessive.  In  short,  as  security 
upon  such  appeals  is  not,  by  the  terms  of  the  statute  required,  and  can  only  be 
by  implication  or  inference,,  the  court  will  not  require  it,  it  being  contrary  ta 
the  spirit  of  the  law  and  the  intent  of  the  Legislature. 

(a.)  There  does  not  seem,  to  be  aay  other  moile  of  getting  the  facts  properly 


NOTICE    OF    HE.\RING.  387 

It  is  not  necessary  to  make  copies  of  the  papers 
for  the  court,  as  in  appeals  from  judgments,  for  the 
appeal  from  an  order  is  heard  as  a  motion. 

Nor  is  it  necessary  to  prepare  points. 

Notice  of  hearing.] — Either  party  may  notice  the 
appeal  for  argument.  It  must  be  noticed  for  the 
first  day  of  a  general  term,  by  a  written  notice  of  at 
least  eight  days.  The  notice  must  specify  the  time 
and  place,  when  and  where,  the  appeal  will  be  heard. 
And  it  must  be  heard  in  the  district  embracing  the 
county  where  the  order  was  entered,  or  in  a  county 
adjoining  the  one  where  it  was  entered.   Code,  §  346. 

No  note  of  issue  is  necessary,  as  the  appeal  is  not 
put  upon  the  calendar. 

Argument.] — The  argument  of  the  appeal  is  heard 
on  a  motion  day  in  term,  when  it  is  called  up  by 
either  party  having  noticed  it. 

The  motion  days  in  the  general  term  are,  the^r^^ 
day  of  the  term ;  Thursday  of  the  first  week  of  the 
term,  and  Friday  of  the  second  week  of  the  term, 


before  the  court.  Formerly,  appeals  from  orders  made  by  a  judge  at  cham- 
bers, came  up  in  the  shape  of  a  motion  to  vacate,  modify  or  discharge  the  or- 
der. The  motion  was  founded  upon  affidavits  of  what  transpired  before  the 
judge  who  made  the  order.  Such  orders  were  seldom  or  never  entered,  and 
the  motion  was  made  at  the  special  term.  The  practice  of  appealing  from 
orders  as  provided  by  the  Code,  seems  to  be  essentially  different  from  that 
which  heretofore  existed  to  obtain  similar  relief.  Now,  the  appeal  carries  the 
question  from  the  special  term  directly  to  the  general  term.  If  the  order  is 
made  by  a  judge  out  of  court  it  must  first  be  entered  with  the  clerk.  The  ap- 
peal is  limited  to  specified  cases  and  can  only  be  heard  upon  the  papers  used  at 
the  special  term,  or  before  the  judge.  And  for  the  purpose  of  enabling  the 
parties  to  get  the  papers  or  copies  of  them,  they  are  required  to  be  filed. 
Hence,  the  practice  would  seem  to  be,  to  require  the  appeal  to  be  heard  upon 
a  certified  copy  of  the  papers  on  file  with  the  clerk  as  the  best  evidence  of 
what  transpired  before  the  special  term,  or  the  judge  who  made  the  order,  and 
not  upon  affidavits,  which  is  the  most  uncertain  and  unsatisfactory  mode  of 
presenting  any  question  to  a  court,  as  there  will  always  be  more  or  less  con- 
flict in  the  statements  of  the  respective  attorneys  as  to  what  papers  were  read,, 
and  what  took  place  before  the  judge  or  special  term. 


388  DECISION — COSTS. 

iaimediately  after  the  opening  of  the  court  on  such 
days.  Rule  36.  The  appeal  may  be  heard  on  either 
of  these  days,  and  it  need  not  be  brought  on  the  first 
d  .y :  ncr  can  a  default  be  taken  for  not  bringing  it 
on,  until  Friday  of  the  second  week  of  term,  unless 
the  respondent  has  noticed  the  appeal  himself. 

The  appellant's  counsel  reads  the  papers  and  opens 
the  argument ;  the  respondenf  s  counsel  replies,  and 
the  appellanf  s  counsel  closes  the  argument.  Only 
one  counsel  on  each  side  is  allowed  to  argue.  Rule  14. 

Either  party  having  noticed  the  appeal  for  hearing, 
may,  if  the  other  party  does  not  appear  to  argue, 
move  for  and  take,  on  furnishing  proof  of  the  service 
of  notice  of  the  hearing,  such  order  as  he  claims  to 
be  entitled  to,  either  of  affirmance  or  reversal  of  the 
order  appealed  from,  as  the  c  jse  may  be.  Rule  28. 

Where  a  default  is  thus  taken,  it  is  the  duty  of  the 
counsel  who  moves  to  endorse  his  name  upon  the 
papers.  Rule  29.  This  is  done  usually  upon  the  back 
of  the  notice  of  hearing. 

Decision^ — Upon  the  decision  being  pronounced 
by  the  court,  the  proper  rule  should  be  drawn  up, 
and  entered  with  the  clerk.  If  the  rule  is  special,  it 
should  be  submitted  to  the  opposite  attorney  or 
counsel,  and,  in  case  of  disagreement,  must  be  set- 
tled by  the  court. 

Get  a  certified  copy  of  the  rule  and  serve  it  upon, 
the  opposite  attorney. 

Costs^ — The  costs  upon  an  appeal  are  in  the  dis- 
cretion of  the  court.  When  awarded  to  either  party 
they  are  the  same  as  upon  a  motion,  viz  :  ten  dol- 
lars. Savage  and  Cowen  v.  Darrow,  4  How.  Pr.  R.,  74. 
As  a  general  rule,  when  the  order  appealed  from 
is  reversed,  costs  will  be  given    to   the   prevailing 


COSTS   HOW    COLLECTABLE.  389 

party;  and,  when  it  is  affirmed,  the  respondent  will 
be  entitled  to  costs.  But  when  the  order  is  modi- 
fied merely,  no  costs  will  be  given  to  either  party. 
The  same  general  rules,  in  respect  to  costs  upon 
special  motions,  are  applicable  to  the  question  of 
costs  upon  appeals  from  orders    (vSee  ante  p.  379.) 

Costs  ivhen  payable.] — The  party  who  is  required  by 
the  rule  or  order  to  pay  costs  or  perform  any  condi- 
tion, has  twenty  days  for  that  purpose  after  the  or- 
der has  been  served  upon  him.  And  if  costs  are  to 
be  taxed,  he  has  twenty  days  after  they  have  been 
taxed  to  pay  them,  (Rule  38,)  and  no  proceeding  can 
be  instituted  to  enforce  the  order  or  process  issued 
to  collect  the  costs  until  the  twenty  days  have 
elapsed.  (See  ante  p,  .379) 

Costs  how  collectable.] — If  the  costs  are  not  paid 
within  the  time  limited  for  that  purpose,  they  may 
be  collected  by  execution,  issued  to  the  sheriff,  reci- 
ting the  appeal  and  order  for  costs,  and  command- 
ing him  to  collect  the  amount  out  of  the  personal 
property  of  the  person  liable  to  pay  the  same.  (Laws 
1847,  Chap  390,  §  3,  and  see    ante  p.  380  ) 

The  same  rules  which  are  applicable  to  execu- 
tions for  costs  of  motions  are  equally  so  to  the  pro- 
cess to  collect  the  costs  granted  upon  an  appeal  from 
an  order,  (as  to  which  see  ante  p.  380.)  it  can  only 
be  collected  out  of  the  personal  property  of  the  party 
and  is  not  a  lien  upon  the  real  estate.  Nor  can  the 
costs,  on  failure  to  collect  out  of  the  personal  proper- 
ty be  afterwards  included  in  the  judgment  for  the 
purpose  of  making  them  a  lien  upon  the  real  estate 
of  the  party. 

The  execution  may  be  issued  to  the  same  coun- 


390  COSTS   HOW    COLLECTABLE. 

ties,  and  is  subject  to  the  same  rules,  and  is  return- 
able within  the  same  time,  and  in  the  same  manner, 
as  executions  issued  upon  judgments,  (as  to  which 
see  ante  p.  221.) 


CHAPTER  VI. 

T)F  THE  SERVICE  OF  NOTICES  AND  OTHER  PAPERS 

IN  A  SUIT, 

The  manner  in  which  notices  and  other  papers 
after  a  suit  was  commenced,  were  served,  was  form- 
erly regulated  by  the  rules  of  the  different  courts. 
It  is  now  regulated  and  fixed  by  statute. 

Except  in  respect  to  the  summons  or  other  pro- 
■cess  by  which  the  suit  is  commenced,  or  any  paper 
to  bring  a  party  into  contempt,  in  which  cases  the 
service  must  be  personal  on  the  party.  Code,  §  418. 
All  papers  in  the  progress  of  the  cause  may  be 
served  upon  the  attorney,  in  one  of  the  several  ways 
prescribed  by  statute. 

Where  the  notice  or  paper  is  served  upon  the 
•attornei/,  it  may  be  made  upon  him  personally  or  by 
delivery  to  him ;  if  he  is  absent  from  his  office,  by 
leaving  the  paper  with  his  clerk  therein,  or  with  a 
person  having  charge  thereof;  .or,  where  there  is  no 
person  in  the  office,  by  leaving  it,  between  the  hours 
of  six  in  the  morning,  and  nine  in  the  evening,  in 
a  conspicuous  place  in  the  ^office,  or  if  it  be  not 
open,  so  as  to  admit  of  such  service,  then  by  leav- 
ing it  at  the  attorney's  residence,  with  some  person 
of  suitable  age  and  discretion. 

If  no  attorney  is  employed,  the  papers  and  notices 
must  be  served   upon  the  party.    Code,  §417.     In 


392  SERVICE    OF    NOTICES    AND    OTHER   PAPtRS. 

such  case  the  service  may  be  made  personally  upon 
the  party,  or  by  leaving  the  paper  at  his  residence, 
between  the  hours  of  six  in  the  morning  and  nine 
in  the  evening,  with  some  person  of  suitable  age 
and  discretion.  Code,  §  409,  svb.  2. 

Service  of  papers  may  also  be  made  by  mail, 
where  the  person  making  the  service  and  the  per- 
son on  whom  it  is  to  be  made  reside  in  different 
places  between  which  there  is  a  regular  communi- 
cation by  mail.  §  410. 

A  service  by  mail  must  be  double  the  time  required 
in  cases  of  personal  services.  §  412.  The  service 
by  mail  is  made  by  depositing  the  paper  in  the  post 
office,  addressed  to  the  person  on  whom  it  is  to  be 
served,  at  his  place  of  residence,  and  paying  the 
postage.  §  41  J. 

Service  of  a  paper  by  mail,  will  be  in  time  if  it  is 
mailed  on  the  last  day  of  service,  though  it  is  not 
received  by  the  opposite  party  until  after  the  time  of 
service  has  expired.  Gibson  v.  Murdoch,   1  Code  Rep., 

103. 

Upon  papers  served,  it  is  the  duty  of  the  attorney, 
besides  subscribing  or  endorsing  his  name,  to  add 
thereto,  his  place  of  residence;  if  he  neglect  to  do 
so,  the  opposite  party  may  serve  on  him  through  the 
mail,  by  directing  them  according  to  the  best  in- 
formation which  can  conveniently  be  obtained  con- 
cerning his  residence.  Rule  5. 

This  rule  appl-ies  to  a  party  who  prosecutes  or 
defends  in  person,  whether  he  be  an  attorney  or 

not.  Id. 

The  service  of  a  notice  of  appearance  or  retainer 
generally,   by  an  attorney,   for  the  defendant,  is  in 


SERVICE    OF    NOTICES    AND    OTHER    PAPERS.  393 

all  cases  deemed  an  appearance,  {Rule  7,)  and  the 
plaintiff  on  filing  such  notice  at  any  time  afterwards, 
may  have  the  appearance  of  the  defendant  entered, 
as  of  the  time  when  such  notice  was  served.  Id. 

A  notice  of  trial,  whether  of  an  issue  of  law  or  of 
fact,  must  be  served  at  least  ten  days  before  the  first 
day  of  the  court. 

A  notice  of  argument  of  an  appeal  from  a  judgment 
or  an  order,  or  of  a  motion,  must  be  served  at  least 
eight  days  before  the  first  day  of  the  term. 

A  notice  of  motion  for  judgment  on  account  of 
irrelevant  or  redundant  matter  in  a  pleading  and  in 
case  of  sham  answers,  must  be  eight  days. 

A  notice  of  motion  for  judgment  on  account  of 
the  frivolousness  of  a  demurrer,  must  he  five  days. 

In  all  other  cases  it  must  be  eight  days. 

A  note  of  issue  for  the  general  term,  must  be 
filed  with  the  clerk  eight  days  before  the  term. 

A  note  of  issue  for  the  trial  of  an  issue  either  at 
the  circuit  or  special  term,  must  be  filed  four  days 
before  the  court. 


CHAPTER  VII. 

OF   PROCURING  THE  APPOINTMENT  OF  A  GUARDI- 
AN AD  LITEM  FOR  AN  INFANT  PARTY. 

As  has  been  stated,  in  an  early  part  of  this  work, 
if  one  of  the  parties  to  the  action  is  an  infant,  he 
must  appear  by  guardian.  No  suit  can  either  be 
prosecuted  or  defended  by  an  infant  in  person.  (Code 
§  115.)  And  where  the  plaintiff  is  an  infant,  the 
guardian  must  be  appointed  before  the  commence- 
ment of  the  suit;  where  the  defendant  is  an  infant, 
no  proceedings  after  service  of  the  summons  can  be 
taken  in  the  action,  until  a  guardian  ad  litem  for 
su(  h  infant  has  been  appointed 

Plaintiff.\ — A  guardian  ad  litem  for  an  infant,  sole 
plaintiff,  is  appointed  upon  the  petition  of  the  infant 
if  he  be  of  the  age  of  fourteen  years,  or  if  under  that 
age,  upon  the  petition  of  a  relative  or  friend  of  the 
infant.  Where  one  of  several  plaintiffs  is  an  infant 
and  is  under  fourteen  years,  the  appointment  may 
be  made  upon  the  petition  of  one  of  the  co-plaintiffs. 

Defendant.]— 1^  \\\e  defendant  is  an  infant,  the  ap- 
pointment of  a  guardian  ad  litem  is  made  ujion  the 
petition  of  the  infant,  if  of  the  age  of  fourteen  years, 
if  under  the  age  of  fourteen  years,  upon  the  petition 
of  a  relative  or  friend  of  the  infant. 

If  an  infant  defendant  or  some  one  in  his  behalf 
neglects  to  apply  for  the  appointment  of  a  guardian 
ad  litem  for  the  space  of  twenty  days  after  the  ser- 


APPOINTMENT    OF  GUARDIAN  AD    LITEM.  395 

vice  of  the  summons  on  such  infant,  the  plaintiff 
may  himself  apply  to  have  the  appointment  made, 
and  the  court  will  appoint  some  suitable  and  proper 
person,  guardian  ad  litem  of  such  infant. 

Who  may  he  appointed  guardian  ad  litem.'] — It  is  pro- 
vided that  no  person  shall  be  appointed  the  guar- 
dian ad  litem  of  an  infant  defendant,  either  on  the 
application  of  the  infant  or  otherwise,  unless  he  be 
the  general  guardian  of  such  infant,  or  an  attorney 
or  other  officer  of  this  court,  who  is  fully  competent 
to  understand  and  protect  the  rights  of  the  infant, 
and  who  has  no  interest  adverse  to  that  of  the  in- 
fant, and  is  not  connected  in  business  with  the  at- 
torney or  counsel  of  the  adverse  party.  And  no  per- 
son shall  be  appointed  such  guardian  ad  litem,  who 
is  not  of  sufficient  ability  to  answer  to  the  infant  for 
any  damage  which  may  be  sustained  by  his  negli- 
gence or  misconduct  in  the  defence  of  the  suit. 
Rule  56. 

And  it  is  made  the  duty  of  every  attorney  or  other 
officer  of  the  court,  to  act  as  guardian  ad  litem  of 
any  infant  defendant  in  any  suit  or  proceeding 
against  him,  whenever  appointed  for  that  purpose 
by  an  order  of  the  court.  Rule  55.  And  it  is  the 
duty  of  such  guardian  ad  litem  to  examine  into  the 
circumstances  of  the  case,  so  far  as  to  enable  him 
to  make  the  proper  defence  when  necessary  for  the 
protection  of  the  rights  of  the  infant.     Id. 

Appointment  how  made.] — The  appointment  of  a  guar- 
dian ad  litem  for  an  infant,  whether  plaintiff  or  de- 
fendant, may  be  made  by  the  court  in  which  the 
action  is  prosecuted,  or  by  a  judge  thereof,  or  by  a 
county  judge. 

For  the  purpose  of  procuring  the  appointment,  a 


396  APPOINTMENT    OF    GUARDIAN    AD    LITEM. 

petition  must  be  prepared,  setting  forth  that  the 
plai:itifF,  who  is  an  infant,  is  about  to  prosecute  the 
suit,  or  that  the  defendant  has  been  served  with  a 
summons,  and  praying  for  the  appointment  of  the 
person  nominated,  as  the  guardian  ad  litem  of  such 
party.  It  should  appear  from  the  petition  that  the 
person  proposed  is  either  the  general  guardian  of  the 
infant,  or  an  attorney  or  other  officer  of  the  court. 

The  consent  of  the  person  proposed  should  be  en- 
dorsed on  the  petition,  and  in  case  the  proposed 
guardian  ad  litem  is  an  attorney  or  other  officer  of 
the  court,  his  affidavit  must  be  annexed  to  the  pe- 
tition, showing  that  he  has  no  interest  in  the  action 
adverse  to  that  of  the  infant,  and  that  he  is  not  con- 
nected in  business  with  the  attorney  or  counsel  of 
the  adverse  party. 

Order.] — The  order  for  the  appointment  of  a 
guardian  ad  litem,  for  an  infant,  either  plaintiff  or 
defendant,  (except  in  an  action  for  the  partition  of 
real  property,)  may  be  entered,  of  course,  on  filing 
the  petition,  consent  and  affidavit  annexed,  and 
also  the  certificate  of  the  justice  of  this  court,  or 
county  judge,  endorsed  upon  the  petition,  that  he 
has  examined  into  the  circumstances,  and  that  the 
guardian  ad  litem,  proposed  is  a  suitable  and  proper 
person  for  such  guardian,  and  has  no  interest  in  the 
suit  in  opposition  to  the  interests  of  the  infant. 
Rule  57. 

No  security  need  be  given  by  the  guardian  ad 
litem;  but  it  is  provided  that  unless  he  has  given 
security  to  the  infant,  according  to  law,  he  shall 
not,  as  such  guardian,  receive  any  money  or  pro- 
perty belonging  to  such  infant,  or  which  may  be 
awarded  to  him  in  the  suit,  except  such  costs  and 


APPOINTMENT    OF    GUARDIAN    AD    LITEM.  397 

expenses  as  may  be  allowed  by  the  court  to  the 
guardian  oat  of  the  fund,  or  recovered  by  the  infant 
in  the  suit.  Rule  58. 

Upon  entering  the  order  appointing  the  guardian 
ad  litem  get  a  certified  copy  and  serve  it  upon  the 
attorney  of  the  opposite  party.  The  petition  and  pa- 
pers upon  which  the  appointment  is  made,  should 
be  filed,  and  the  orde  •  entered  in  the  county  where 
the  action  is  triable. 

In  case  the  application  is  made  by  the  plaintiff 
for  the  appointment  of  a  guardian  ad  litem  for  an 
infant  defendant,  it  would  seem  that  the  application 
must  be  made  to  the  court,  or  to  a  judge  thereof  or 
to  a  county  judge,  and  the  order  cannot  be  entered 
of  course.  The  motion  however  is  n\?idie  ex  parte ; 
no  notice  thereof  being  required. 

The  order  for  the  appointment  of  a  guardian  ad 
litem  when  entered,  of  course  is  entered  in  the  book 
of  proceedings  and  orders,  kept  by  the  clerk  of  the 
county  where  the  action  is  pending.  Rule  4. 


CHAPTER  YIll. 

Of  Judgment  on  Confession. 

The  old  practice  of  entering  up  judgment  upon  a 
bond  and  warrant  of  attorney,  is  abrogated  by  the 
Code,  and  a  new  provision  made  for  obtaining  a 
judgment  by  the  confession  of  the  party.  Code  §  382. 

For  this  purpose  a  statement  or  instrument  in 
writing  must  be  made,  specifying  the  amount  for 
which  the  judgment  may  be  entered.  If  it  be  for 
money  already  due  to  the  party  in  whose  favor  the 
judgment  is  to  be  entered,  it  must  state  the  exact 
amount  that  is  due,  and  must  show  distinctly  and 
affirmatively  that  the  amount  is  justly  due  to  such 
party ;  and  where  the  object  of  the  judgment  is  to 
secure  the  payment  of  an  indebtedness  not  yet  due, 
the  statement  must  in  like  manner  show  accuratelv 
the  sum  or  amount  that  will  become  due  to  the 
party,  and  that  such  sum  will  justly  become  due  to 
such  party.  And  in  both  cases,  whether  of  money 
that  is  actually  due,  or  to  become  due,  the  statement 
or  instrument  must  state  the  facts  out  of  which  the 
indebtedness  arose. 

A  judgment  by  confession  may  also  be  entered  to 
secure  a  party  against  a  contingent  liability  on  be- 
half of  the  defendant.  Thus,  the  endorser  of  a  pro- 
missory note,  or  acceptor  or  endorser  of  a  bill  of  ex- 
change ;  a  person  who  becomes  security  for  another 


JUDGMENT    ON    CONFESSION.  399 

for  any  purpose,  upon  a  bond  or  undertaking,  or  a 
person  who  may  become  liable  for  the  debt,  or  may 
be  made  to  pay  money  for  another,  may  take  from 
such  person,  or  from  the  maker  or  drawer  of  the  note 
or  bill,  a  judgment  by  confession.  A  statement 
must  in  like  manner  be  drawn  up,  which  must  state 
vthe  sum  for  which  the  judgment  is  confessed,  and 
the  facts  constituting  the  liability.  It  must  show 
that  the  sum  confessed  does  not  exceed  the  liability. 

The  statement  having  been  drawn,  must  be  sign- 
ed by  the  defendant,  and  must  be  verified  by  his 
oath,  to  the  effect  that  he  believes  it  to  be  true. 

Entering  judgment.] — The  written  statement  signed 
and  sworn  to  by  the  defendant,  must  then  be  filed 
with  the  clerk  of  the  county  where  it  is  intended 
to  have  the  judgment  entered.  The  clerk  will  then 
endorse  upon  the  statement  a  judgment  of  the  Su- 
preme Court,  for  the  amount  confessed,  with  five 
dollars  costs.  If  the  judgment  is  designed  to  be 
entered  in  the  Superior  Court  of  New- York  city,  the 
statement  must  be  filed  with  the  clerk  of  that  court, 
and  the  judgment  of  that  court  entered  thereupon. 

The  statement  and  the  judgment  endorsed,  forms 
the  judgment  roll. 

A  transcript  from  such  judgment  may  be  taken 
from  the  clerk  with  whom  the  judgment  is  entered, 
and  filed  with  the  clerk  of  any  other  county,  and 
the  judgment  docketed  therein  in  like  manner  as 
upon  other  judgments.  Such  judgment  is  a  lien  on 
real  property  in  the  county,  from  the  time  of  dock- 
eting the  judgment  therein.  Code,  §  232. 


"\ 


CHAPTER  IX. 

PROCEEDINGS  AGAINST  JOINT  DEBTORS,  HEIRS,  DE- 
VISEES, LEGATEES,  AND  TENANTS,  HOLDING  UN- 
DER A  JUDGMENT  DEBTOR. 

Under  the  former  statutes  and  practice,  as  they 
existed  before  the  Code,  if  the  declaration  or  pro- 
cess, by  which  the  suit  was  commenced,  was  serv- 
ed upon  some  but  not  upon  all  of  two  or  more  joint 
debtors,  the  plaintiff  could  enter  judgment,  which 
was  inform  against  all,  but  the  record  contained  a 
suggestion  that  some  had  not  been  served  with  the 
declaration  or  process.  In  enforcing  such  judgment 
the  statute  required  a  special  direction  on  the  exe- 
cutioh,  requiring  the  sheriff  to  collect  the  judgment 
from  the  joint  propertj^  of  all  the  defendants  own- 
ed by  them  as  co-partners,  and  from  the  individual 
property  of  such  as  had  been  served,  but  not  from 
the  sole  property  of  the  defendants  not  served.  In 
such  case  the  plaintiilif  he  wished  to  pursue  the  in- 
dividual property  of  the  defendant  not  previously 
served,  was  obliged  to  bring  an  action  of  debt  upon 
the  judgment.  6  Wendell,  206.  In  such  action,  the 
persons  not  previously  served,  might  contest  their 
joint  liability,  (23  Wendell  293  )  and  the  judgment  was 
only  evidence  of  the  ^or/ezi^  of  the  plaintifi's  demand, 
and  the  liability  of  the  defendants  had  to  be  estab- 
lished by  other  proof  2  Rev.  Stat.  377,  §  2.  14  Wendell 
221.     So  under  the  former  practice,  wiiere  a  judg- 


J 


PROCEEDINGS  AGAINST  JOINT    DEBTORS.  401 

ment  debtor  died  after  judgment,  the  heirs  devisees, 
or  legatees  of  the  judgment  debtor,  or  the  tenants  of 
the  real  estate  owned  by  him,  could  only  be  reach- 
ed by  reviving  the  judgment  against  such  heirs,  de- 
visees, legatees  or  terre  tenants,  which  was  done  by  a 
writ  oi  scire  facias  issued  to  revive  the  judgment  and 
charge  the  estate  of  the  deceased  in  the  hands  of 
his  heirs  &c.  or  tenants.  This  writ  was  served  upon 
the  persons  in  whose  hands  the  estate  of  the  deceased 
judgment  debtor  was  transferred,  and  upon  judg- 
ment being  obtained  upon  the  scire  facias,  an  exe- 
cution was  issued  to  enforce  the  judgment  against 
such  estate. 

A  different  proceeding  is  now  provided  by  the 
Code,  §376. 

Proceedings  against  joint  debtors.] — Instead  of  bring- 
ing an  action  of  debt  upon  the  judgment,  as  here- 
tofore, provision  is  made  {Code,  §  375,)  for  continu- 
ing the  proceedings  against  such  as  were  not  served, 
to  the  end  that  a  judgment  against  their  individual 
property  may  be  obtained.  The  cases  in  which 
this  proceeding  may  be  instituted,  are  such  as  arise 
upon  a  contract,  either  express  or  implied,  but  not 
for  torts  or  other  personal  wrongs.  Code  §  136.  The 
defendants  who  have  not  been  served  with  the 
summons  in  the  original  action,  may  now  be  sum- 
moned to  show  cause  why  they  should  not  be  bound 
by  the  judgment  in  the  same  manner  as  if  they  had 
been  originally  summoned. 

Proceedings  against  heirs,  devisees,  or  legatees  or  terre 
tenants  of  a  deceased  judgment  debtor.] — In  lieu  of  the 
old  practice  of  bringing  a  scire  facias  to  revive  the 
judgment  against  the  persons  who  have  succeeded 

2Q 


402  THE    SUMMONS. 

to  the  estate  of  the  judgment  debtor,  it  is  now  pro- 
vided that  such  persons,  whether  heirs,  devisees,  or 
legatees  of  the  judgment  debtor,  or  the  tenants 
of  real  property  owned  by  him  and  aflected  by 
the  judgment,  may  be  summoned  to  show  cause 
why  the  judgment  should  not  be  enforced  against 
the  estate  of  the  judgment  debtor  in  their  hands. 
So  the  personal  representatives  of  a  deceased  judg- 
ment debtor  may  in  like  manner  be  summoned. 

Where  the  heirs,  devisees,  or  legatees,  or  tenants 
of  the  real  estate  are  summoned,  it  cannot  be  done 
until  after  the  expiration  of  three  years  from  the  time 
of  granting  letters  testamentary,  or  of  administration 
upon  the  estate  of  the  judgment  debtor;  but  where 
the  personal  representatives,  tuch  as  the  executors 
or  administrators,  are  summoned,  it  must  be  done 
within  one  year  after  their  appointment  as  such. 

As  the  practice  in  both  cases,  whether  against  a 
defendant  who  has  not  been  served  with  the  sum- 
mons in  the  original  action,  or  against  the  heirsy 
devisees,  legatees,  tenants,  or  personal  representa- 
tives of  a  deceased  judgment  debtor  is  to  be  served^ 
the  subject  will  be  treated  in  connexion  with  each- 
other. 

The  symmons.] — The  pioceeding  is  commenced  byr 
summons.  It  must  describe  the  judgment,  and 
must  require  the  persons  summoned,  if  a  defendant 
not  before  served,  to  show  cause  why  he  should  not 
be  bound  by  the  judgment ;  and  if  an  heir,  devisee, 
legatee,  or  tenant,  or  personal  representative  of  a 
deceased  judgment  debtor,  to  show  cause  why  the 
judgment  should  not  be  enforced  against  the  estate 
of  the  judgment  debtor,  in  their  hands;  and  in  either 
case  it  must  require  the  person  summoned  to  show 


THE    AFFIDAVIT.  403 

cause,  within  twenty  days  after  service  of  the  sum- 
mons. It  must  be  subscribed  by  the  judgment  cred- 
itor, his  personal  representatives,  or  attorney,  and 
must  be  addressed  to  the  person  summoned. 

The  summons  is  served  in  the  same  manner  as  in 
actions.  See  ante,  p.  110. 

The  affidavit.] — The  summons  must  be  accompa- 
nied by  an  affidavit,  that  the  judgment  has  not  been 
satisfied,  to  the  knowledge  or  information  and  belief 
of  the  person  making  the  affidavit.  The  affidavit 
must  specify  the  amount  due  on  the  judgment. 

As  the  affidavit  is  necessarily  the  foundation  of 
the  proceeding,  it  would  seem  that  it  should  state 
enough  to  give  the  court  jurisdiction.  Hence,  when 
the  proceeding  is  against  heirs,  devisees,  legatees, 
or  tenants  of  real  property,  it  should  state  that 
three  years  have  elapsed  since  the  granting  of 
letters  testamentary  or  of  administration  upon  the 
estate  of  the  testator  or  intestate ;  and  when  it  is 
against  the  personal  representatives,  the  affidavit 
should  state  that  one  year  has  not  elapsed  since 
their  appointment.  The  affidavit  must  be  sworn 
to  by  the  judgment  creditor  or  his  personal  repre- 
sentatives, or  it  may  be  by  the  attorney  who  sub- 
scribes the  summons.  If  the  affidavit  contains 
more  than  two  folios,  the  party  or  attorney  must 
distinctly  number  and  mark  each  folio  in  the  mar- 
gin; and  all  copies,  either  for  the  court  or  the 
parties,  must  be  numbered  and  marked  in  the  mar- 
gin, so  as  to  conform  to  the  original  draft  and  to 
each  other.  Rule  44. 

The  affidavit  must  be  served  upon  the  person 
summoned,  at  the  same  time  and  in  the  same  man- 
ner that  the  summons  is  served  ;  and  it  seems  that 


404  THE    ANSWER, 

the   original  affidavit,   and   not   a  copy,   should  be 
served.  Code,  §  378.  The  affidavit  is  not  demurrable. 

The  ansiocr-l — The  party  on  v^hora  the  summons 
and  affidavit  is  served  may  answer  the  facts  alleged 
in  the  affidavit,  and  thus  shew  cause  against  the 
relief  demanded  in  the  summons.  He  may  deny 
the  judgment,  or  set  up  any  defence  that  may  have 
arisen  since  the  judgment  was  entered.  Thus  he 
may  answer  payment,  accord  and  satisfaction, 
statute  of  limitations,  or  any  other  defence  which 
has  subsequently  arisen  Or  where  the  proceeding 
is  against  a  person  not  originally  served  with  pro- 
cess, such  person  may  interpose  the  same  defence 
which  he  might  have  originally  made  to  the  action, 
except  that  he  cannot  set  up  the  statute  of  limita- 
tions. 

The  answer  must  be  drawn  in  the  same  manner 
as  answers  to  a  complaint  in  an  action,  and  in  like 
manner  must  be  verified,  (as  which,  see  ante,  p.  149,) 
and  folioed,  (see  a?ite,  p.  150,)  and  is  subject  to  the 
same  rules  as  an  answer  in  an  action,  {Code,  §  381, 
and  see  ante,  p.  144,)  and  must  be  served  upon  the 
person  by  whom  the  summons  is  subscribed,  within 
twenty  days  after  it  is  received. 

Demurrer  to  ansiver.'] — A  demurrer  to  the  affidavit 
is  not  allowed,  but  the  party  Avho  issued  the  sum- 
mons may  demur  to  the  answer.  Such  answer  can 
only  be  demurred  to  for  insufficiency,  there  being  no 
other  ground  of  objection  to  the  answer  that  can 
be  made  by  demurrer.  The  demurrer  is  drawn  in 
the  same  manner,  served  within  the  same  time,  and 
is  subject  to  the  same  rules  as  prevail  in  respect  to 
demurrers  to  answers  in  actions.  See  ante,  p.  152. 

Reply] — If  the   answer   is  not  demurrable,  and 


DEMURRER    TO    REPLY.  405 

sets  up  a  defence  that  arose  subsequent  to  the  en- 
tering of  the  judgment,  the  party  who  issued  the 
summons  may  reply  thereto,  either  taking  .issue 
upon  the  allegations  contained  in  the  answer,  that 
is  simply  denying  them,  or  he  may  aver  any  new 
matter  in  avoidance  of  such  defence. 

The  reply  must  be  drawn  in  the  same  manner  as 
replies  to  answers  in  an  action,  and  in  like  manner 
must  be  verified,  (see  ante  p.  154.)  and  folioed,  (see 
ante  p.  156,)  and  is  subject  to  the  same  rules  as  a  re- 
ply in  an  action,  {Code,  §  381,  and  see  ante  p.  153,) 
and  must  be  served  within  twenty  days  after  the 
receipt  of  the  answer. 

Demurrer  to  reply.] — If  the  reply  to  the  answer  con- 
tains any  new  matter  in  avoidance  of  the  allega- 
tions contained  in  the  answer,  the  party  on  whom 
the  summons  is  served  may  demur  But  a  demur- 
rer to  a  reply  can  only  be  for  insyfficiency,  that  being 
the  only  ground  of  objection  that  can  be  raised  by  a 
demurrer  to  a  reply. 

The  demurrer  is  drawn  in  th:^  same  manner, 
served  within  the  same  time,  and  is  subject  to  the 
sane  rules  as  prevail  in  respect  to  demurrers  to  a 
reply  in  an  action.  See  ante  p.  158. 

Issue.'] — Upon  an  issue  being  formed  either  of  law 
or  fact,  it  is  to  be  tried  in  the  same  manner  as  issues 
in  an  action  are  disposed  of  If  the  issue  be  one  of 
law,  that  is,  arising  upon  a  demurrer  to  the  answer 
or  the  reply,  it  is  to  be  heard  at  a  special  term ;  (see 
ante  p.  195,)  if  it  be  one  of  fact  it  is  to  be  tried  by  the 
court  without  a  jury,  or  by  a  jury,  or  by  a  reference. 
See  ante  p.  169. 

Judgment.] — The  judgment  upon  the  issue  is  en- 
tered in  the   same  manner  as  judgments  in  an  ac- 


406  COSTS EXECUTION. 

tion.  See  ante  p.  197.  A  brief  statement  of  the  re- 
lief granted  is  drawn  up  and  entered  by  the  clerk. 
The  judgment  roll  is  made  up  of  the  summons,  af- 
fidavit, answer,  reply  and  demurrers,  if  any  have 
been  put  in,  or  copies  of  such  papers,  a  copy  of  the 
entry  of  judgment,  the  verdict  of  the  jury,  report  of 
referees,  or  decision  of  the  court,  and  the  like.  See 
ante  p.  201. 

The  judgment  may  be  excepted  to  and  reviewed 
in  like  manner  as  judgments  in  actions. 

Costs.] — The  prevailing  party  may  recover  costs, 
and  have  the  same  entered  in  the  judgment,  in  the 
same  manner  as  in  actions.  The  costs  recoverable 
are  the  same  at  those  allowed  in  actions,  and  must 
be  adjusted  by  the  clerk  upon  the  same  notice,  and 
is  subject  to  review  in  the  same  manner  as  in  ac- 
tions. See  ante  p.  203. 

Execution.] — The  judgment  entered  in  this  pro- 
ceeding may  be  enforced  by  execution  in  the  same 
manner  as  judgments  in  actions.  See  a?ife  p.  221. 
An  execution  however,  can  only  be  issued  against 
the  property.  It  cannot  be  issued  against  the  per- 
son of  the  defendant.  And  where  the  proceeding  is 
instituted  against  heirs,  devisees,  legatees  or  tenants 
of  real  property,  or  the  representatives  of  the  judg- 
ment debtor,  the  application  of  the  property  in  their 
hands  charged  with  the  payment  of  the  judgment, 
may  be  compelled  by  attachment.  Code,  §  380. 


CHAPTER  X. 

OF  COURTS  OF  JUSTICES  OF  THE  PEACE. 

Thk  practice  in  courts  of  justices  of  the  peace  hav- 
ing been  so  materially  changed  by  the  Code  of  Pro- 
cedure, and  in  most  particulars  assimilated  to  the 
proceedings  in  courts  of  record,  that  a  familiarity 
with  the  practice  in  the  latter  courts,  will  enable  a 
person  to  conduct  a  suit  before  a  justice  of  the  peace 
with  little  difficulty.  A  brief  notice  of  the  juris- 
diction, practice  and  proceedings  in  the  courts  of 
justices  of  the  peace,  as  regulated  by  the  Code,  will 
not,  however,  be  inappropriate  in  this  treatise. 

SECTION  I. 

Of  Jurisdiction  of  Courts  of  Justices  of  the  Peace. 

These  courts  have  no  common  law,  or  original 
jurisdiction,  but  derive  all  their  powers  from  statutes. 
They  are  created  by  statute,  and  can  exercise  no 
jurisdiction  or  power  that  is  not  specifically  confer- 
red by  law.  Hence,  we  must  look  to  the  statutes 
for  the  causes  of  action  in  which  they  have  power 
to  act,  and  any  proceeding  or  judgment,  not^within 
the  scope  of  their  powers,  would  be  nugatory  and 
void. 

It  is  provided  by  section  fifcy-4hree  of  the  Code  of 


408  JURISDICTION    OF   JUSTICES'    COURTS. 

Procedure,  that  justices  of  the  peace  shall  have  civil 
jurisdiction  in  the  folloAving  actions,  and  no  other: 

1.  An  action  arising  on  contract  for  the  recovery 
of  money  only,  if  the  sum  claimed  do  not  exceed 
one  hundred  dollars. 

This  action  embraces  suits  on  promissory  notes, 
bills  of  exchange,  bonds,  leases,  and  every  kind  of 
contract,  as  well  such  as  are  under  seal,  as  those 
that  are  not  under  seal.  Also,  suits  upon  implied 
contracts,  such  as  for  goods,  wares  and  merchandise 
sold  and  delivered ;  work  and  labor  done  and  per- 
formed;  money  lent  and  advanced,  and  similar 
cases,  where  theie  is  no  express  contract,  but  where 
one  can  be  implied  by  law.  The  contract,  whether 
express  or  implied,  must  be  for  the  payment  of  mo- 
ney, and  the  amount  claimed  by  the  plaintiff  can  in  j 
no  case  exceed  one  hundred  dollars. 

2.  An  action  for  damages  for  an  injury  to  the  per- 
son, or  to  real  property;  or  for  taking,  detaining,  or 
injuring  personal  property,  if  the  damages  claimed 
do  not  exceed  one  hundred  dollars. 

There  are  but  few  cases  of  "  injury  to  the  person" 
where  a  justice  of  the  peace  has  jurisdiction;  the 
common  ones  being  assault  and  battery,  false  im- 
prisonment, slander,  and  the  like,  over  which  he 
is  prohibited  by  law  from  taking  an/  cognizance. 
See  post  p.  410.  A  justice  may,  however,  entertain 
an  action  against  a  physician,  for  mal-practice  in 
his  profession,  whereby  the  plaintiff  has  sustained 
a  personal  injury ;  or  for  negligently  running  over 
a  person,  whereby  he  is  injured  ;  or  for  any  injuries 
to  the  person,  resulting  from  the  negligence,  want 
of  skill,  or  wilful  act  of  another.  Actions  for  tres- 
pass to  lands,  or  injuries  of  any  description  to  real 


JURISDiCTIOxN    OF    JUSTICES*    COURTS.  409 

or  personal  property,  may  be  tried  before  a  justice. 
So  he  may  entertain  an  action  for  unlawfully  takino" 
personal  property  from  the  possession  of  the  plain- 
tiff, or  having  taken  it  lawfully,  for  detaining  it  un- 
lawfully. And  generally,  a  justice  has  jurisdiction 
over  all  those  cases  in  which  trespass  or  trover  was 
formerly  the  appropriate  action. 

3.  An  action  for  a  penalty  not  exceeding  one  hun- 
dred dollars,  given  by  statute. 

4.  An  action  commenced  by  attachment  against 
property,  as  now  provided  by  statute,  if  the  debt  or 
damages  claimed  do  not  exceed  one  hundred  dol- 
lars. 

The  cases  in  which  a  justice  can  issue  an  attach- 
ment, will  be  found  in  2  R.  S.  230,  §  26;  Scss.  Laws 
of  1842,;?.  74,  chap   107,  §34. 

5.  An  action  upon  a  bond,  conditioned  for  the 
payment  of  money,  not  exceeding  one  hundred  dol- 
lars, though  the  penalty  exceed  that  sum,  the  judg- 
ment to  be  given  for  the  sum  actually  due.  .  Where 
the  payments  are  to  be  made  in  instalments,  an  ac- 
tion may  be  brought  for  each  instalment,  as  it  shall 
become  due : 

A  justice  cannot  render  a  judgment  for  a  sum  ex- 
ceeding one  hundred  dollars,  and  the  amount,  there- 
fore, which  the  plaintiff  claims  to  recover,  must  not 
exceed  that  sum.  Formerly,  in  suits  upon  bonds 
for  the  payment  of  money  only,  the  plaintiff  took 
judgment  for  the  penalty  which  was  usually  double 
the  amount  intended  to  be  secured,  and  issued  his 
execution  to  collect  the  sum  which  was  actually 
due.  The  judgment  now  to  be  rendered,  is  for  da- 
mages and  not  for  debt,  and  therefore  the  plaintiff 
recovers  the  amount  actually  due  by  the  condition 


410  JURISDICTION    OF    JUSTICES'    COURTS. 

of  the  bond  and  not  the  penalty.  Hence  where  the 
condition  of  a  bond  is  to  pay  one  hundred  dollars, 
the  justice  has  jurisdiction,  though  the  penalty  be 
two  hundred  dollars  And  so,  where  an  instalment 
due  upon  a  bond,  does  not  exceed  one  hundred  dol- 
lars, the  action  for  its  recovery,  may  be  tried  by  a 
justice. 

6.  An  action  upon  a  surety  bond  taken  by  them, 
though  the  penalty  or  amount  claimed  exceed  one 
hundred  dollars. 

There  are  a  variety  of  cases  where  a  justice  is 
authorized  to  take  a  surety  bond,  such  as  upon  is- 
suing an  attachment,  or  upon  the  adjournment  of  a 
suit,  and  the  like.  In  such  cases,  the  justice  has 
jurisdiction  though  the  amount  claimed  exceed  on^ 
hundred  dollars,   and  he  may  render  judgment  for 

any  sum. 

7.  An  action  upon  a  judgment,  rendered  in  a  court 
of  a  justice  of  the  peace,  or  of  a  justices'  or  other 
inferior  court  in  a  city  where  such  action  is  not 
prohibited,  as  hereafter  stated,  (see  post.) 

8.  To  take  and  enter  judgment  on  the  confession 
of  a  defendant,  where  the  amount  confessed  shall 
not  exceed  two  hundred  and  fifty  dollars. 

The  manner  of  confessing  a  judgment  before  a 
justice,  is  prescribed  by  2  Rev.  Stat.  p.  245,  §§113, 
114,  115,  116. 

Having  seen  the  cases  and  causes  of  action  in 
which  justices  of  the  peace  have  jurisdiction,  it  re- 
mains to  be  seen  in  what  cases  they  have  not  juris- 
diction. 

It  is  provided  by  section  54  of  the  Code,  that  no 
justice  of  the  peace  shall  have  cognizance  of  a  civil 


JURISDICTION    OF    JUSTICES*    COURTS.  411 

action  in  which  the  people  of  this  State  are  a  party, 
except  for  penalties  not  exceeding  one  hundred  dol- 
lar's. 

There  are  many  penalties  given  by  statute,  for 
which  an  action  may  be  maintained  in  the  name  of 
the  people,  which  if  they  do  not  exceed  one  hun- 
dred dollars,  may  be  sued  for  before  a  justice  of  the 
peace.      Thus,   a  penalty  of  twenty-five   dollars  is 
imposed    by    statute  upon  the  captain  of  a   canal 
boat  for  omitting  to  deliver  a  clearance  of  his  boat  to 
the  canal  collector.     And  all  such  penalties  as  are 
not  specifically  granted  by  law  to  the  party  aggriev- 
ed,  or  to   any  officer,  or  to  or  for  the  use  of  any 
county,  town  or  other  body  politic,  or  for  the  use  of 
the   poor  of  any  place,  or  to  any  person  who   will 
prosecute,  or  which  is  not  otherwise  specially  appro- 
priated, must  be  sued  for  in  the  name  of  the  people 
of  the  State.     For  any  such  penalties  a  suit  may  be 
brought  before  a  justice  of  the   peace,  provided  the 
penalty  do  not  exceed  one  hundred  dollars. 

A  justice  cannot  entertain  a  civil   action  where 
the  title  to  lands  or  real  property  comes  in  question, 
(as  to  which  see  post)  nor  for  an  assault  and  battery, 
false  imprisonment,  libel,  slander,  malicious  prose- 
cution, criminal  conversation  or  seduction,  {Code,  § 
54,  sub.  2,  3,)  nor  of  a  matter  of  account  where  the 
sum  total  of  the  account  of  both  parties  proved  to 
tbe  satisfaction  of  the  justice,  exceeds  four  hundred 
dollars,  {ibid.,  sub.  4,)  nor  of  an   action  against  an 
executor  or  administrator,  as  such.  Ibid  ,  sub.  5.     In 
all  these  actions,  a  justice  can  have  no  jurisdiction, 
and  it  cannot  be  conferred  upon  him  by  the  consent 
of  the  parties. 


412  THE    COMPLAINT. 


SECTION  II. 

Of  the  Manner  of  Commencing  the  Action. 

The  suit  is  commenced  by  the  issuing  and  service 
of  a  summons.  No  change  is  made  by  the  Code, 
as  respects  the  manner  of  commencing  the  action, 
and  the  mode  now  prescribed  by  statute,  continues 
in  force.  As  respects  the  parties  to  the  action,  the 
same  rules  prevail  as  in  courts  of  record.  As  to 
which  see  ante  p.  9.  The  real  parties  in  interest 
must  be  made  parties  plaintiff  and  defendant,  and 
a  suit  cannot  be  brought  in  the  name  of  or  against 
a  fictitious  person. 

SECTION  III. 

Of  the  Pleadings. 

There  are  but  two  pleadings  allowed  in  courts  of 
justices  of  the  peace. 

L.  The  complaint  by  the  plaintiff: 

2.  The  answer  by  the  defendant.  Code,  §  64,  suh  1. 

The  pleadings  may  be  oral  or  in  writing,  as  the 
parties  may  elect.  If  oral,  the  substance  of  them 
must  be  entered  by  the  justice  in  his  docket;  if  in 
writing,  they  must  be  filed  by  him,  and  a  reference 
to  them  must  be  made  by  the  justice  in  his  docket. 

If  the  complaint  is  in  writing,  the  answer  maybe 
oral  or  in  writing;  so,  if  the  complaint  is  oral,  the 
answer  may  be  in  writing  or  oral. 

The  complaint.] — No  particular  form  is  required  in 
stating  the  cause  of  action  in  the  complaint.     It  is 


i 


THE    ANSWER.  413 

sufficient,  if  it  state  in  a  plain  and  direct  manner, 
the  facts  constituting  the  cause  of  action.  It  is  not 
necessary  to  set  out  in  the  complaint  the  proof  of 
the  facts,  but  the  facts  themselves,  leaving  the  proof 
for  the  trial.  Thus,  it  will  be  sufficient,  to  state  in 
the  complaint,  that  the  defendant  took  and  carried 
away,  and  converted  to  his  own  use,  twenty  bushels 
of  wheat,  the  propertij  of  the  plaintiff,  without  stating 
how  the  plaintiff  acquired  the  property,  or  how  the 
defendant  took  or  converted  the  same.  The  general 
rules,  appertaining  to  complaints  in  courts  of  record, 
(as  to  which  see  ante  p.  99,)  are  applicable  to  com- 
plaints in  courts  of  justices  of  the  peace,  and  they 
are  required  in  all  cases,  to  be  such  "as  to  enable  a 
person  of  common  understanding  to  know  what  is 
intended,"  and  they  must  be  explicit,  plain  and 
direct.  If  they  fail  of  being  explicit,  the  defendant 
may,  for  that  cause,  demur,  as  well  as  because  it 
contains  no  sufficient  cause  of  action. 

As  pleadings  are,  for  the  most  part,  oral  in  these 
courts,  less  skill  and  particularity  is  required,  than 
in  courts  of  record ;  and  liberal  indulgence  will  al- 
ways be  allowed,  by  way  of  amendments,  for  the 
promotion  of  substantial  justice  between  the  parties. 
The  complaint  need  not  be  verified. 

The  ansiver.] — The  answer,  like  the  complaint,  need 
not  be  in  any  particular  form ;  it  must,  however, 
contain  a  denial  of  the  complaint  or  of  some  material 
part  of  it,  or  notice  of  the  facts  constituting  the  de- 
fence. It  sometimes  occurs,  that  the  defendant  can- 
not deny  the  whole  or  any  part  of  the  complaint;  in 
such  a  case,  the  defendant  may  give  notice  of  any 
facts  which  go  to  avoid  the  cause  of  action.  Thus, 
in  an  action  on  a  promissory  note,  the  defendant 


414  THE   DEMURRER. 

mav  give  rotice  that  the  cause  of  action  upon  the 
note  did  not  accrue  within  six  years  next  before  the 
commencement  of  the  action;  or,  that  it  has  been 
paid  ;  or,  that  the  defendant  was  an  infant  when  he 
made  the  note,  and  the  like.  In  such  cases,  the  de- 
fendant does  not  deny  the  facts  set  forth  in  the  com- 
plaint, but  set  up  something  in  avoidance  of  them. 

The  denial must  be  general  or  specific,  and  the  no- 
tice of  new  matter,  must  be  plain  and  direct,  and  so 
stated  that  a  person  of  common  understanding  may 
know  what  is  intended  The  same  consequences 
ensue,  from  its  not  being  explicit,  nunely,  the  plain- 
tiff may  demur.  The  same  general  rales,  in  respect 
to  answers  in  courts  of  record  (as  to  which  see  ante 
p.  145,)  prevail  injustices' courts,  except  that  less  par- 
ticularity is  required,  and  greater  indulgence  is  grant- 
ed.    The  answer  need  not  be  verified. 

The  demurrer.] — Any  pleading  may  be  demurred  to 
by  the  opposite  party,  that  is,  the  defendant  may  de- 
mur to  the  complaint,  or  the  plaintiff  may  demur  to 
the  answer.  There  are  but /w;o  grounds  of  demurrer 
allowed  in  courts  of  justices  of  the  jcace. 

1.  Where  a  pleading  is  not  sufficiently  explicit  to 
enable  the  party  to  understand  it. 

2.  Where  it  contains  no  cause  of  action  or  de- 
fence. 

As  has  been  before  stated,  it  is  required  in  every 
pleading  that  it  should  be  plain,  direct  and  explicit. 
No  particular  form  is  necessary,  but  the  opposite 
party  must  be  able  to  understand  from  it  the  nature 
of  the  action  or  the  defence.  If,  therefore,  the  com- 
plaint or  answer  be  inexplicit  or  unintelligible,  or 
obscure,  so  that  the  adverse  party  cannot  understand 
what  is  meant,  the  only  way  in  which  he  can  com- 


THE    DEMURRER.  415 

pel  it  to  be  made  plain  and  easy  of  comprehension, 
is  by  demurring  to  it  for  that  cause.  It  then  be- 
comes a  question  for  the  justice  to  decide,  and  if  he 
deem  the  objection  well  founded,  he  will  require  the 
pleading  to  be  amended. 

Tile  second  ground  of  demurrer  is  that  the  com- 
plaint does  not  contain  a  cause  of  action,  or  that  the 
facts  set  up  in  the  answer  do  not,  in  law,  constitute 
a  defence;  for  no  other  reason  can  a  demurrer  be 
put  in,  in  a  justice's  court.  A  defect  of  parties, 
plaintiff  or  defendant,  is  no  ground  of  demurrer, 
although  it  appear  on  the  face  of  the  complaint. 
The  objection  can  only  be  taken  advantage  of  by 
answer,  upon  the  trial.  So,  a  want  of  jurisdiction 
in  the  justice,  over  the  person  of  the  defendant  or 
tlie  subject  of  the  action;  or  where  the  plaintiff  has 
not  legal  capacity  to  sue ;  or  where  there  is  another 
action  pending  for  the  same  cause,  between  the 
same  parties;  or  where  there  are  several  causes  of 
action  improperly  united.  These  are  not  grounds 
of  objection  by  demurrer,  even  if  they  appear  by  the 
complaint.  The  defendant  must  set  up  the  objec- 
tion in  his  answer,  and  it  will  be  ground  of  non-suit 
or  verdict  on  the  trial. 

By  demurring,  the  pleading  demurred  to  is  ad- 
mitted to  be  true,  and  the  sole  question  to  be  deter- 
mined is,  whether  the  objection  is  or  not  well  taken. 

How  put  m.]— A  demurrer  may  be  oral  or  in  w^rit- 
ing.  It  need  uDt  be  in  any  particular  form,  nor  need 
it  state  particularly  the  grounds  of  objection  any 
farther  than  that  the  complaint  or  answer  is  not 
sufficiently  explicit  to  enable  him  to  understand  it,, 
or  that  it  contains  no  cause  of  action  or  defence. 
It  is  not  necessary  to  point  out,  in  the  demurrer^ 


416  THE    DEMURRER. 

any  more  specifically  the  particular  objections  relied 
on.  As  demurrers  in  justice  courts  are  put  in  before 
the  justice,  and  usually  immediately  argued  and  de- 
cided, the  opposite  party  will  be  apprized,  by  the 
argument  of  the  demurrer,  what  the  objection  is. 

Judgment  upon  demurrer.] — If  the  justice  is  of  opinion 
that  the  objection  taken  to  the  pleading  is  well 
founded,  he  must  order  the  pleading  demurred  to, 
to  be  amended,  and  the  party  has  the  right  to  amend 
it,  accordingly  j  and  this  may  be  done  without  the 
payment  of  any  costs.  The  justice  has  no  right  to 
impose  the  payment  of  costs  ae  a  condition  of  the 
amendment:  nor  has  the  justice  any  discretion, 
whether  to  allow  the  amendment  or  not.  He  ?nust 
order  it  to  be  made. 

If  the  justice  decide  the  objection  to  be  well 
founded,  and  order  the  pleading  to  be  amended,  and 
tlie  party  whose  duty  it  is  to  amend,  omit  or  reluse 
to  amend,  the  justice  will  disregard  the  defective 
pleading.  Thus,  if  the  demurrer  be  to  the  com- 
plaint, and  the  plaintiff  refuse  to  amend,  the  justice 
must  render  judgment  of  discontinuance  with  costs 
to  the  defendant;  or  if  the  answer  be  demurred  to, 
and  the  defendant  refuse  to  amend,  the  justice  must 
proceed,  as  if  there  was  no  answer,  and  render  judg- 
ment for  the  plaintiff. 

If  judgment  upon  the  demurrer  be  against  the  de- 
murrer, the  justice,  if  the  demurring  party  be  a  de- 
fendant, may  permit  him  to  answer  the  complaint, 
and  the  issue  formed  is  thus  tried  as  in  other  cases. 
If  the  plaintiff  demur  to  the  answer,  and  judgment 
be  against  the  demurrer,  the  answer  is  deemed  to  be 
sufficient,  and  the  justice  proceeds  to  try  the  cause, 
as  if  no  demurrer  had  been  put  in. 


ACTION   OR    DEFENCE   UPON  AN  ACCOUNT.  417 

WTiere  defendant  does  not  appear  and  answer.] — In  case 
the  defendant  does  not  appear  and  answer  the  com- 
plaint, the  justice  cannot  render  judgment  without 
proof  of  the  cause  of  action.  The  defendant  by- 
omitting  to  appear  and  answer,  does^zoHhereby  ad- 
mit the  allegations  contained  in  the  comphiint,  but 
the  plaintiff  must,  notwithstanding,  prove  his  case 
in  the  same  manner,  and  to  the  same  extent  as  if 
the  defendant  had  by  answer,  denied  the  alleged 
cause  of  action,  and  a  judgment  without  such  proof 
would  be  irregular,  and  might  be  reversed  on  appeal. 

If,  however,  the  defendant  appears,  that  is,  answers 
to  the  suit,  when  called  by  the  justice,  but  does  not  an- 
swer the  complaint,  the  justice  may  render  judgment 
without  proof  on  the  part  of  the  plaintiff.  In  such  a 
case,  the  appearance  of  the  defendant  and  his  refu- 
sal or  omission  to  answer,  will  be  deemed  an  ad- 
mission by  him  of  the  truth  of  the  matters  alleged  in 
the  complaint,  and  the  justice  will  require  no  fur- 
ther or  other  evidence. 

Action  or  defence  founded  upon  an  account,  Sfc] — If  the 
cause  of  the  plaintiff's  action  or  of  the  defendant's 
defence,  consists  of  an  account  or  an  instrument  for 
the  payment  of  money  only,  it  is  not  necessary  to 
set  it  out  in  the  complaint  or  answer,  but  it  will  be 
sufficient,  if  the  party  delivers  the  account  or  instru- 
ment to  the  justice  and  state  to  him  that  the  party 
claims  that  there  is  due  to  him  upon  such  account 
or  instrument,  a  specified  sum  which  he  claims  to 
recover  or  set  off  in  the  action.  The  justice  must 
retain  the  account  or  instrument  in  his  possession 
and  enter  in  his  docket  the  fact  of  its  delivery  to 
him,  and  the  statement  of  the  amount    claimed  to 

be  due  thereon. 

27 


418         TITLE  TO  REAL  PROPERTY  COMING  IN  QUESTION. 

Justice  to  enter  or  file  pleadings,'] — The  justice  is  re- 
quired to  keep  a  docket  of  his  proceedings  in  every 
action  commenced  or  tried  before  h  m.  In  this,  he 
must  enter  the  pleadings  of  the  parties.  He  need 
not  write  out  the  complaint  and  answer  in  full,  but 
when  the  pleadings  are  oral,  it  is  sufficient  to  enter 
in  his  docket  the  substance  thereof,  and  if  they  are 
in  writing,  the  justice  may  file  them,  noting  the  fact 
in  his  docket. 

SECTION  IV. 

Of  title  to  Real  Property  coming  in  Question. 

A  justice  of  the  peace  cannot  try  any  action,  in 
which  the  title  to  real  property  is  involved,  rnd 
whenever  the  defence  of  title  is  interposed  or  arises 
on  the  trial,  the  justice  is  ousted  of  jurisdiction  and 
must  dismiss  the  action.  It  is  necessary,  however, 
that  the  title,  where  it  arises  on  the  trial  should  be 
disputed  by  the  adverse  party,  otherwise  there  is  no 
question  of  title  to  try,  and  the  justice  would  have 
jurisdiction. 

There  are  but  two  ways  in  which  the  question  of 
title  can  arise  in  a  justice's  court.  First,  by  the  an- 
swer of  the  defendant,  and  second,  when  it  appears 
on  the  trial  by  the  plaintiff's  own  showing. 

Answer  of  title.] — The  defendant  may,  either  with 
or  without  other  matter  of  defence,  set  forth  in 
his  answer  any  matter  shewing  that  the  title  to 
real  property  will  come  in  question  in  the  action. 
Thus,  in  an  action  of  trespass  to  lands,  the  de- 
fendant may  answer  that  the  lands  upon  which  the 
alleged  trespass  was  committed  were  his ;  or  where 
the  trespass  consists  of  passing  over  lands  claimed 


THE   UNDERTAKING.  419 

by  the  plaintiff,  the  defendant  may,  in  his  answer, 
claim  a  right  of  way ;  and  he  may  also,  in  any 
case,  deny  the  plaintiff's  cause  of  action,  or  set  up 
any  other  defence  thereto,  and  aver  any  matter 
shewing  that  the  title  to  lands  will  come  in  ques- 
tion, all  in  the  same  answer.  -  Each  defence,  how- 
ever, must  be  stated  separately. 

Where  the  answer  alleges  that  title  will  com.e  in 
question,  it  must  in  all  cases  he  in  writing.  An  oral 
answer  of  title  is  not  allowed.  It  must  be  signed 
by  the  defendant  or  his  attorney,  and  delivered  to 
the  justice.  The  justice,  upon  receiving  the  answer, 
must  countersign  it,  and  deliver  it  to  the  plaintiff  in 
the  action.  Code,  §  55. 

The  undertaking.'] — The  answer  of  title  is  inopera- 
tive, unless  an  undertaking  is  delivered  to  the 
justice.  At  the  time  the  answer  of  the  defendant 
is  delivered  to  the  justice,  the  defendant  must  also 
deliver  to  the  justice  a  written  undertaking,  executed 
by  at  least  one  sufficient  surety,  to  the  effect  that  if 
the  plaintiff  shall,  within  thirty  days  thereafter, 
deposite  with  the  justice  a  summons  and  complaint 
in  an  action  in  the  Supreme  Court  for  the  same 
cause,  the  defendant  will,  within  ten  days  after 
such  deposite,  give  an  admission  in  writing  of  the 
service  thereof.  If  the  defendant  shall  have  been 
arrested  in  the  action  before  the  justice,  the  under- 
taking must  further  provide  that  the  defendant  will, 
at  all  times,  render  himself  amenable  to  the  process 
of  the  court  during  the  pendency  of  the  action,  and 
to  such  as  may  be  issued  to  enforce  the  judgment 
therein.   (For  form  of  undertaking,  see  Appendix.) 

The    undertaking,    and    the    sufficiency   of    the- 
surety  or  sureties,  must  be  approved  by  the  justice. 


420  DISCONTINUANCE    OF    ACTION. 

His  approval  should  be  endorsed  upon  the  under- 
taking. The  justice  may  require  more  than  one 
surety,  if  in  his  judgment  one  be  not  sufficient. 

Discontinuance  of  action] — Upon  receiving  the  un- 
dertaking, duly  executed  and  approved,  the  justice 
must  discontinue  the  action ;  for  which  purpose 
he  must  enter  upon  his  docket  a  judgment  of  discon- 
tinuance. Each  party,  upon  the  discontinuance, 
must  pay  his  own  costs,  and  the  judgment  may 
include  the  costs ;  and  the  justice  is  authorized  to 
enforce  the  payment  of  the  costs  by  execution 
upon  the  judgment  of  discontinuance.  The  costs 
paid  by  either  party,  upon  the  discontinuance  of 
the  action,  will  be  allowed  to  him,  if  he  recover 
costs  in  the  action  to  be  brought  for  the  same  cause 
in  the  Supreme  Court.  If  the  defendant  does  not 
give  the  undertaking  in  the  form  and  to  the  effect 
as  required,  the  justice  may  go  on  and  try  the  cause, 
notwithstanding  the  answer  of  title,  and  upon  the 
trial  the  defendant  will  be  precluded  from  drawing 
title  in  question.  Code,  §  58. 

When  title  comes  in  question  on  the  trial.] — The  second 
case  in  which  title  may  come  in  question,  as  above 
stated,  is  where  it  shall  appear  on  the  trial  by  the 
plaintiff's  own  shewing.  It  sometimes  occurs  that 
the  plaintiff  in  order  to  sustain  his  action,  must 
shew  his  title.  Thus,  in  actions  for  trespass  to  lands 
where  the  plaintiff  has  a  constructive  and  not  the 
actual  possession,  he  cannot  sustain  the  action  with- 
out showing  his  title,  which  gives  him  the  construc- 
tive possession.  In  such  and  similar  cases,  the  jus- 
tice cannot  continue  the  trial,  and  must  dismiss  the 
iBuit,  and  render  judgment  against  the  plaintiff  for 
the  costs.     There  is  no  way  in  which  a  justice  can 


PROSECUTING    SUIT    IN    SUPREME    COURT.  421 

try  a  disputed  question  of  title,  and  the  consent  of  the 
parties  will  not  confer  jurisdiction.  The  title,  how- 
ever, sought  to  be  proved  by  the  plaintiff,  must  be 
disputed  by  the  defendant,  before  the  justice  is  de- 
prived of  jurisdiction,  and  an  admitted  title,  though 
it  be  essential  to  the  recovery,  does  not  take  from 
the  justice,  jurisdiction  over  the  action. 

Prosecuti?ig  suit  in  Supreme  Court.] — The  suit  having 
been  discontinued  by  reason  of  the  answer  and  un- 
dertaking on  the  part  of  the  defendant,  or  dismiss- 
ed by  reason  of  the  plaintiff's  drawing  title  in  ques- 
tion on  the  trial,  the  plaintiff's  only  remedy  is  to 
prosecute  an  action  for  the  same  cause  in  the  Su- 
preme Court. 

A  summons  and  complaint  must  be  drawn  as  in 
ordinary  actions  in  courts  of  record.  The  complaint 
however,  must  be  for  the  same  cause  of  action  on 
which  the  plaintiff  relied  before  the  justice,  and  it 
cannot  be  for  any  other  or  further  cause  of  action. 
A  copy  of  the  summons  and  complaint,  'within  thirti/ 
days  after  the  discontinuance  of  the  action,  by  the 
justice,  must  be  delivered  by  the  plaintiff  to  the  jus- 
tice before  whom  the  suit  was  pending.  The  de- 
fendant is  then  bound,  within  ten  days  after  such  de- 
livery to  the  justice,  to  give  to  the  plaintiff  or  his 
attorney,  an  admission  in  writing  of  the  service  of 
the  copy  of  the  summons  and  complaint  upon  him. 
The  copy  delivered  to  the  justice  by  the  plaintiff  is 
taken  from  the  justice  by  the  defendant. 

Within  the  time  required  or  specified  in  the  sum- 
mons, the  defendant  must  serve  his  answer  upon 
the  plaintiff's  attorney.  The  answer  must  be  the 
same  as  that  which  the  defendant  made  before  the 
justice,  and  no  new  defence  can  be  interposed,  nor 


422  COSTS. 

can  the  defendant  leave  out  any  defence  he  made 
before  the  justice. 

The  action  is  then  proceeded  with,  and  tried  like 
actions  originally  commenced  in  the  Supreme  Court. 

If  the  defendant  omit  to  give  the  admission  of 
service,  as  above  stated,  the  surety  will  be  liable  to 
the  amount  of  one  hundred  dollars,  but  not  beyond 
that  sum. 

If  in  the  action,  before  the  justice,  the  plaintiiF 
complains  for  several  causes  of  action,  and  the  de- 
fendant interposes  a  defence  of  title  to  real  property 
as  to  one  of  such  causes  of  action,  and  takes  issue 
as  to  the  rest,  and  gives  the  undertaking  as  required, 
the  justice  shall  discontinue  the  proceedings  as  to  the 
cause  of  action  to  which  the  defence  of  title  is  made, 
^nd  continue  the  proceedings  as  to  the  other  causes 
of  action.  For  the  cause  of  action  discontinued,  the 
plaintiff  may  commence  a  new  suit  in  the  Supreme 
Court,  as  in  other  cases  where  the  defence  of  title 
goes  to  the  whole  cause  of  action. 

Costs.] — If  the  judgment  in  the  Supreme  Court  be 
for  the  plaintiff,  he  will  recover  the  costs  of  that 
court ;  and  it  makes  no  difference  whether  the 
question  of  title  came  in  issue  or  not.  Tl^e  defend- 
aat  having  prevented  a  trial  before  the  justice,  and 
compelled  the  plaintiff  to  prosecute  his  action  in  the 
Supreme  Court,  he  must  pay  the  costs  if  the  plain- 
tiff recovers  anything.  If  the  judgment  be  for  the 
defendant  in  the  Supreme  Court,  he  will  be  entitled 
to  costs,  except  that  where  a  verdict  is  in  his  favor, 
the  judge  who  tried  the  cause  must  certify  that  the 
title  to  real  property  came  in  question  on  the  trial,  for 
unless  such  was  the  case,  the  defendant  will  not  be 
entitled  to  costs,  though  he  get  a  verdict  in  his  favor. 


OBTAINING  THE  PARTICULARS  OF  AN  ACCOUNT.  423 


SECTION  V. 

Of  Obtaining  the    Particulars   of  an  Account. 

A  party  in  suing  upon  an  accoant,  or  in  setting  it  off 
against  the  plaintiff's  demand,  is  not  bound  in  the 
first  instance  to  set  out  in  his  complaint  or  notice 
the  items  of  his  account.  But  at  the  time  of  join- 
ing issue,  the  justice  may,  npon  the  request  of  either 
party,  require  the  items  of  the  account  or  a  specifi- 
cation of  the  demand,  to  be  exhibited  to  the  adverse 
party.  He  may  require  the  account  or  demand  to 
be  exhibited  at  the  time  of  the  joining  of  the  issue, 
or  at  some  other  stated  time.  The  application  for 
the  items  of  an  account,  or  of  the  nature  of  the  de- 
mand, can  only  be  made  at  the  joining  of  the 
issue. 

If  the  party  refuse  or  neglect  to  exhibit  his  ac- 
count or  to  state  the  nature  of  his  demand,  when 
required  by  the  justice  to  do  so,  he  will  be  precluded 
from  giving  any  evidence  in  respect  thereto. 

SECTION  VI. 

Of  Variances  and  herein  of  Amendments. 

It  is  not  necessary  that  every  allegation  in  a 
pleading  should  be  exactly  supported  by  the  proof 
on.  the  trial,  and  any  variance  which  has  not  actual- 
ly misled  the  adverse  party  to  his  prejudice,  will 
not  affect  the  judgment.  The  variance  must  be 
mater iul,  and  it  must  appear  that  the  adverse  party 
has  been  prejudiced  in  prej  aring  to  maintain  his 


424  AMENDMENTS. 

action  or  defence.  The  court  must  be  satisfied  that 
the  party  has  been  misled.  And  where  it  is  alleged 
that  a  party  has  been  prejudiced  by  a  variance  be- 
tween the  allegations  in  the  pleadings  and  the  proof 
on  the  trial,  he  must  satisfy  the  justice  in  what  re- 
spect and  to  what  extent  he  has  been  misled,  or  the 
court  will  disregard  it. 

Notwithstanding  the  variance  may  be  material 
and  the  adverse  party  may  have  actually  been  mis- 
led by  it,  the  justice  may  allow  an  amendment  of 
the  pleading,  so  as  to  make  it  conform  to  the  proof 
(As  to  amendments,  see  post) 

Where,  however,  the  allegations  of  the  cause  of 
action  or  of  the  defence  to  which  the  proof  is  direct- 
ed, is  wholhj  unproved,  not  in  some  particular  or 
particulars  only,  but  in  its  entire  scope  and  mean- 
ing, it  is  not  deemed  2t variance;  still,  the  justice, 
though  he  may  not  be  allowed  to  disregard  it,  may 
permit  the  pleading  to  be  amended. 

Amendments.'] — In  courts  of  justices  of  the  peace, 
where  no  regard  is  paid  to  the  forms  of  pleadings, 
and  where  for  the  most  part,  they  are  orally  put  in, 
ample  power  is  given  for  amendments.  Therefore, 
any  pleading  may  be  amended,  and  at  any  time, 
either  before  the  trial,  or  during  the  trial,  or  even 
upon  appeal,  when,  by  such  amendment,  substantial 
justice  will  be  promoted.  Code,  §  C4,  suh.  11, 

The  power  here  conferred  upon  the  justice,  covers 
every  case  of  mistake  or  omission  in  a  pleading. 
The  right  to  amend  rests,  however,  in  the  discretion 
of  the  court.  But  it  would  be  difhcnlt  to  conceive 
of  a  case,  where  a  justice,  in  the  exercise  of  a  sound 
and  legal  discretion,  would  be  authorised  to  refuse 
an  amendment. 


TERMS.  425 

The  main  question,  therefore,  for  the  justice  to 
determine  is,  upon  what  terms,  the  amendment 
should  be  allowed. 

Terras.'] — Ordinarily,  amendments  in  justices'  courts 
are  allowed  without  imposing  as  a  condition  the  pay- 
ment of  costs  to  the  adverse  party.  Where,  howev- 
er, the  amendment,  so  changes  the  cause  of  action 
or  defence,  as  will  require  from  the  adverse  party 
further  and  additional  proof,  and  he  is  put  to  expense 
in  obtaining  other  witnesses,  the  justice  may  require 
as  a  condition  of  granting  leave  to  amend,  that  the 
costs,  to  be  fixed  by  him,  be  paid,  so  where,  in  con- 
sequence of  an  amendment,  an  adjournment  be- 
comes necessary,  the  costs  of  the  attendance  of  wit- 
nesses may  be  imposed,  and  the  party  amending  be 
required  to  pay  them. 

In  addition  to  imposing^ costs  as  a  condition  of 
granting  an  amendment,  if  the  justice  is  satisfied, 
(and  he  can  only  be  satisfied  by  oath)  that  an  ad- 
journment is  necessary  to  the  adverse  party  in  con- 
sequence of  such  amendment,  the  justice  must  ad- 
journ the  cause. 

If,  however,  the  party  wishing  an  amendment, 
omits  to  apply  to  the  justice  for  leave,  until  after  a 
witness  has  been  sworn  upon  the  trial,  it  will  be  too 
late,  if,  in  consequence  of  the  amendment,  an  ad- 
journment becomes  necessary.  The  party  must 
therefore  apply  for  his  amendment  before  the  trial 
has  progressed  to  the  examination  of  a  witness,  un- 
less the  amendment  be  of  a  nature  not  to  require 
an  adjournment  of  the  trial. 


426  TRANSCRIPTS EXECUTION. 

SECTION  VII. 
Of  Transcripts. 

If  a  party  obtaining  a  judgment  in  a  justice's 
court,  wishes  to  make  it  a  lien  upon  real  property, 
he  must  obtain  from  the  justice  a  transcript  of  the 
judgment,  which  may  be  filed  in  any  county  where 
the  defendant  has  real  property.  The  transcript 
must  be  filed  and  docketed  in  the  office  of  the  clerk 
of  the  county,  from  which  time  it  becomes  a  judg- 
ment of  the  county  court. 

No  judgment  for  a  less  sum  than  twenty-five  dol- 
lars, exclusive  of  costs,  can  be  made  a  lien  upon 
real  property ;  nor  can  any  judgment  for  a  less  sum 
be  enforced  against  reaL property  in  any  way. 

SECTION  VIII.      . 

Of  the  Execution. 

Executions  upon  judgments  in  justices'  courts, 
may  be  issued  immediately  upon  entering  the  judg- 
ment, or  at  any  time  afterwards,  within  five  years. 
It  is  not  necessary  to  wait  any  time  after  the  rendi- 
tion of  the  judgment,  or  to  furnish  any  proof  to  the 
justice,  but  the  execution  may  go  out  immediately. 

The  execution  must  be  returnable  sixty  days  from 
its  date. 


APPENDIX 


OK 


PRACTICAL  FORMS. 


PRACTICAL  FORMS. 


[  No.  I.  ] 
Notice  of  demand  of  copy  complainL 

[T^tle  of  cause.] 

To  E.  F.,  pltff's  Att'y. 

Sir : 

Take  notice,  that  I  demand  a  copy  of  the  coraplftint  in  this 

action,  and  the  same  may  be  served  on  me,  at  my  office  in  the  [city 

of  Albany.] 

Dated,  &c. 

Yours,  &c., 

G.  H.,  def'ts  Att'y. 


[  No.  2.  ] 

Notice  of  demand  to  have  the  action  tried  in  the  proper  county. 

[Title  of  cause.] 

To  A.  B.,  pltfl^'s  Att'y. 
Sir: 

Take  notice,  that  I  demand  that  the  trial  of  this  action  be  had 
in  the  county  of  Ulster,  instead  of  the  county  of  Orange,  as  desig- 
nated in  the  complaint. 

Dated,  &c. 

Yours,  &c., 

C.  D.,  deft's  Att'v. 


430 


PRACTICAL   FORMS. 


[  No.  3.  ] 

Notice  of  offer  to  compromise. 

[Title  of  ca2/se.] 

To  E.  F.,  pltff's  Att'y. 
Sir: 

Take  notice,  that  the  defendant  hereby  offers  to  let  judgment 
be  entered  against  him,  in  favor  of  the  plaintiff  in  this  action,  for 
the  sum  of  one  hundred  and  seventy-five  dollars  ;  [or  for  the  de- 
livery to  him  of  the  following  described  property,  being  part  of  the 
property  mentioned  in  the  complaint  in  this  action,  viz  :  (here  de- 
scribe the  property  the  defendant  is  willing  to  let  j  udgment  be  entered 
for;)  ]  or,  [for  the  following  described  real  property,  being  part  of 
the  property  mentioned  in  the  complaint  in  this  action,  viz :  (de- 
scribe same,)  and  the  like.] 

Dated,  &c. 

Yours,  &c., 

G.  H.,  Deft's  Atfy. 


[  No.  4.  ] 
Notice  oj  acceptance  of  offer. 

[Title  of  cause.] 

To  G.  H.,  deft's  Att'y. 
Sir: 

Take  notice,  that  the  plaintiff'  hereby  accepts  the  offer  of  the 
defendant  to  let  judgment  be  entered  against  him,  for  the  sum  of 
one  hundred  and  seventy-five  dollars,  [or  as  the  case  may  be.] 

Dated,  &c. 

Yours,  &c. 

E.  F.,  Pltff"'s  Att'y. 


PBJI^TICAL    FORMS.  431 

[  No.  5.  ] 
Demand  of  copy  of  an  account. 

[Title  of  cause.] 

To  E.  F.,  pltff's  Att'y. 
Sir: 

I  hereby  demand  a  copy  of  the  items  of  the  account  alleged 

in  the  complaint  in  this  action. 

Dated,  &c. 

Yours,  &c. 

G.  H.,  Deft's  Att'y. 


[  No.  6.  ] 

Copy  account  furnished. 

[Title  of  cause.] 

To  G.  H.,  Def'ts  Att'y. 
Sir: 

Take  notice  that  the' following  are  the  items  of  the  account  al- 
leged in  the  complaint  in  this  action,  viz  :  [here  copy  the  items, 
with  dates  and  amounts,] 

Yours,  &c., 

E.  F.,  Pltf's  Att'y. 


[  No.  7.  ] 

Affidavit  annexed. 

[Title  of  cause.] 

Cayuga  county. — A,  B.,  plaintiff  in  this   action,    [or   C.  D., 
agent  of  the  plaintiff,  or  E.  F.,   attorney  for   the    plaintiff,]    being 
sworn,  says  that  he  believes  the  foregoing  copy  account  to  be  true. 
Sworn,  &c. 

A.  B. 


432  PRACTICAL    FORMS. 

[  No.  8.  1 

j^ffidavit  to  move  to  change  place  of  trial. 

[Title  of  cause.] 

County  of  Oneida. — C.  D.,  defendant  in  this  action,  being 
sworn,  says,  that  the  place  designated  in  the  complaint  for  the  trial 
of  this  action  is  the  county  of  Rensselaer  :  that  deponent  has  fully 
and  fairly  stated  the  case  in  this  action  to  E.  F.,  his  counsel  there- 
in, who  resides  in,  &c.,  and  that  he  has  a  good  and  substantial  de- 
fence on  the  merits,  as  he  is  advised  by  his  said  counsel,  after  such 
statement  as  aforesaid,  and  verily  believes  to  be  true. 

And  deponent  further  says,  that  he  has  fully  and  fairly  stated  to 
his  said  counsel  the  facts  he  expects  to  prove  by  N,  J.,  of  &c.,  and 
J.  K,  of  &c.,  and  R.  S.,  of  &c.,  and  that  the  testimony  of  each 
and  every  one  of  said  witnesses  is  material  and  necessary  for  this 
deponent  on  the  trial  of  said  action,  as  he  is  advised  by  his  said 
counsel,  and  as  he  verily  believes  to  be  true,  and  that  without  the 
testimony  of  each  and  every  one  of  said  witnesses,  he  cannot  safely 
proceed  to  the  trial  of  this  action,  as  he  is  also  advised  by  his  said 
counsel  and  verily  believes  to  be  true. 

And  this  deponent  further  says,  that  this  action  is  brought  to 
recover  damages  upon  a  contract  for  the  erection  of  a  block  of  eight 
stores  in  the  city  of  Utica,  and  that  it  is  alleged  in  the  complaint 
that  the  same  are  not  done  according  to  the  contract  in  a  good  and 
workmanlike  manner,  but  are  unskilfully  and  improperly  built ; 
and  ihat  the  defence  thereto  is  that  said  buildings  are  skilfully  and 
properly  built,  and  according  to  the  terms  of  the  said  contract. 
And  deponent  says,  that  the  said  contract  was  made  in  the  said 
city  of  Utica,  and  that  the  before  named  witnesses  assisted  depo- 
nent in  the  erection  thereof  as  workmen,  and  that  the  said  N.  J.  was 
deponent's  foreman,  and  took  the  principal  charge  of  said  buildings 
during  the  construction  thereof.  [State  any  other  facts  showing 
ho7o  the  witnesses  may  be  material  and  necessary,  and  why  the  place 
of  trial  should  he  changed.] 

Sworn,  &c. 

C.  D. 


PRACTICAL   FORMS.  433 

I  No.  9.  I 

Notice  of  motion  to  change  place  of  trial. 

[Title  of  cause  J] 

ToE.  F.,  Pltff's  Atfy,. 

Sir: 

Take  notice  that  upon  the  affidavit  (with  a  copy  of  which  you 
are  herewith  served),  I  shall  move  this  court  at  a  special  term  thereof 
to  be  held  at  the  city  hall,  in  the  city  of  Albany,  on  the  last  Tues- 
day of  November  next,  at  the  opening  of  the  court,  or  as  soon  there- 
after as  counsel  can  be  heard,  for  an  order  changing  the  place  of 
trial  of  this  action  from  the  county  of  Rensselaer  to  the  county  of 
Oneida,  and  for  such  further  or  for  such  other  order  as  the  court 
may  grant. 

Dated,  &c. 

G.  H.,  Deft's  Att'y. 


I  No.  10.  ]       • 
Order  changing  place  oftriaL 

\  Title  of  cflMse.] 

On  reading  and  filing  an  affidavit  and  notice  of  motion,  with, 
proof  of  due  service  thereof,  on  the  plaintiff's  attorney,  and  after  hear- 
ing Mr.  G.  H.,  of  counsel  for  the  defendant,  and  Mr.  E.  F.,  of  counsel 
for  the  plaintiff  [or  no  one  appearing  to  oppose],  it  is  ordered  that 
the  place  of  trial  of  this  action  be,  and  the  same  hereby  is,  changed 
from  the  county  of  Rensselaer  to  the  county  of  Oneida. 


[  No.  11.  ] 
Notice  of  trial  and  inquests 

{Title  of  cause.] 

Take  notice  that  the  above  cause  will  be  brought  to  trial,  and 
an  inquest  taken  therein,  at  a  circuit  court  appointed  to  be  held  in 
and  for  the  county  of  Erie^  at  the  court  house  in  the  city  of  Buffalo, 

28 


434  PRACTICAL   FORMS. 

on  the  first  Monday  in  April  next,  at  the  opening  of  the  court,  or  as 

soon  thereafter  as  counsel  can  be  heard. 

Dated,  &c. 

Yours,  &c.. 


To 


A.  B.,  Pltfl^s  Att'y. 


[  No.  12.  ] 
Affidavit  of  merits. 

[Title  of  cause.] 

County  of  Albany. — C.  D.,  the  defendant  in  the  above  entitled 
action,  being  duly  sworn,  doth  depose  and  say,  that  he  has  fully  and 
fairly  stated  the  case  in  the  above  action  to  E.  F.,  his  counsel  in 
this  action,  who  resides  in  the  city  of  Albany,  in  the  said  county  'y 
and  that  he  has  a  good  and  substantial  defence  upon  the  merits 
thereof,  as  he  is  advised  by  his  said  counsel,  after  such  statement 
made  as  aforesaid,  and  verily  believes  to  be  true. 
Sworn,  &c, 

C.  B. 


[  No.  13.  ] 
Notice  to  produce  papers  on  trial.- 

{Title  of  cause.] 

Take  notice,  that  you  are  hereby  required  to  produce,  on  the 

trial  of  this  case,  a  certain  promissory  note  (or  receipt),  made  (or 

signed)  by  E.  F.  (here  describe  the  paper) ;  or  in  default  thereof, 

parol  (or  "  secondary")  evidenc-e  will  be  given  of  its  contents. 

Yours,  &c. 

G.  H.»  Att'y  for  Deft. 
To 

J.R.,  Pltflf's  Att'y. 


PRACTICAL    FORMS.  435 

[  No   14.  ] 

Notice  of  application  for  judgment,  defendant  having  appeared. 

[Title  of  cause.^ 

Take  notice  that  I  shall  apply  to  the  special  term  of  this  court 
at  the  city  of  Albany  on  the  first  Monday  of  September  next  at  ten 
o'clock  A.  M.,  or  as  soon  thereafter  as  counsel  can  be  heard,  for  the 
relief  demanded  in  the  complaint  in  this  action. 

Dated  &c. 

Yours,  &c., 

A.  B.,  Pltff's  Att'y. 
ToC.  D.,  Deft  AttV. 


[  No.  15.  ] 

Notice  of  motion  for  judgment,  frivolous  demurrer. 

[Title  of  cause.] 

Take  notice  that  I  shall  apply  to  the  special  term  of  this  court 

to  be  held  at  the  court  house  in  the  city  tf  Rochester  on  the  first 

Monday  of  October  next,  at  ten  o'clock  A.  M.,  or  as  soon  thereafter 

as  counsel  can  be  heard  for  judgment   in  the  above  entitled  action, 

on  account  of  the  frivolousness  of  the  demurrer. 

Dated  &c., 

Yours  &c., 


To  C.  D.,  Deft's  Att'y. 


A.  B.,  Pltfl!''s  Att'y. 


[  No.  16.  ] 

Notice  of  examination  of  party  as  a  witness. 

[Title  of  cause.] 

Take  notice  that  I  will  examine  C.  D.  the  defendant  in  this 
action,  before  E.  F.,  a  Justice  of  this  court  (or  county  judge  of  the 
county  of  Greene)  at  his  office  in  the  village  of  Catskiil  on  the 
tenth  day  of  June  inst.  ^t  10  o'clock,  A.  M. 

Dated  &c. 

Yours,  &c. 

A.  B.,  Pltfl^s  Att'y. 

To  A.  R.,  Deft's  Att'y. 

(and)  C.  D.,  defendant. 


436  PRACTICAL   FORMS. 

[  No.  17.  ] 
Notice  of  application  to  have  costs  inserted  in  entry  of  judgment. 

[Title  of  cause.} 

To  A.  B.,  Esq.,  Deft's  Ati'y. 
Sir: 

Please  to  take  notice,*  that  I  shall  apply  to  C.  D.,  clerk  of  the 

county  of ,  at  his  office  in ,  on  the 

day  of next,  to  insert  in  the  entry  of  judgment,  in  this 

action,  the  within  [or  above]  sum  of  the  charges  for  costs  therein. 
Dated,  &c. 

Yours,  &c., 

E.  F.,  Pliff's  Att'y. 


[  No.  18.  ] 
Another  form, 

[Like  the  above  to  the  (*)  then  add]  that  the  costs,  of  which  the 

within  is  a  copy,  will  be  adjusted  by   C.    D.,   clerk  of  Dutchess 

county,  at  his  office  in  the   village   of  Poughkeepsie,  on  the  first 

day  of  September  next,  at  nine  o'clock  in  the  forenoon. 

Dated,  &c. 

Yours,  &c., 

E.  F.,  PltfT's.  Att'y. 


[  No.  19.  ] 
Summo?is  against  absent  or  concealed  defendant. 

[Title  of  cause.} 

To  the  defendant : 
You  are  hereby  summoned  and  required  to  answer  the  complaint 
in  this  action,  which  is  filed  in  the  office  of  the  clerk  of  the  county 
of  Greene,  and  serve  a  copy  of  your  answer  on  me,  at  my  office  in 
the  village  (f  Catskill,  within  twenty  days  after  the  service  of  this 
summons  on  you,  exclusive  of  the  day  of  such  service.  And  if 
you  fail  to  answer  the  said  complaint  within  the  time  aforesaid,  the 


PRACTICAL    FORMS.  437 

plaintiff  will  take  judgment  against  you  for  the  sum  of  o?ie  hic7idred 
dollars,  with  interest  from  the  Jirst  day  of  January,  1849,  besides 
costs 


Dated,  &c. 


E.  F.,PItff's  Att'y. 


[  No.  20.  ] 

Sumvions. — {for  relief.) 

[l^tle  of  cause.] 

To  C.  D.,  defendant. 
Sir: 

You  are  hereby  summoned  and  required  to  answer  the  com- 
plaint in  this  action,  of  which  a  copy  is  herewith  served  upon  you, 
and  serve  a  copy  of  your  answer  upon  me,  at  my  office  in  the  vil- 
lage of  Poughkeepsie,  within  twenty  days  after  the  service  hereof, 
exclusive  of  the  day  of  such  service ;  and  if  you  fail  to  answer  the 
complaint  as  aforesaid,  the  plaintiff  will  apply  to  the  court  for  the 
relief  demanded  in  the  complaint. 

Dated,  &c. 

E.  F.,  PltfT's  Att'y. 


[  No.  21.  ] 

Summons  for  ynoney  demand  on  contract. 

[Tittle  of  cause.'] 
To 
You  are  hereby  summoned  and  required  to   answer  the  com- 
plaint in  this  action,  and  to  serve  a  copy  of  your  answer  to  the  said 
complaint  on  the  subscriber   at  his  office,  No.  80    State-street,  Al' 
bany,  within  twenty  days  after  the  service  of  this  summons  on  you, 
exclusive  of  the  day  of  such  service  ;  and  if  you  fail  to  answer  the 
said  complaint  within  the  time  aforesaid,  the  Plaintiff     in  this  ac- 
tion will  take  judgment  against  you   for  the  sum  of  one  hundred 
and  tAventy-five  dollars  with  interest   from  the  fifth  day  of  January, 
one  thousand  eight  hundred  andforty-nine,  besides  costs  of  suit. 
Dated  &c. 

C.  A.  D.  Plaintiff 's  Attorney.. 


438  PRACTICAL   FORMS. 

[  No.  22.  ] 

Summons,  in  an  action  arising  on  contract  for  the  recovery  of  money 

only,  complaint  not  served. 

[Title  of  cause-l 

To  C.  D.,  defendant. 

You  are  summoned  to  answer  the  complaint  of  A.  B.,  plaintiff, 
a  copy  of  which  is  hereto  annexed,  [or,]  which  will  be  filed  in  the 
office  of  the  clerk  of  the  county  of  [Dutchess]  and  serve  a  copy 
thereof  on  me  at  [my  office  in  the  village  of  Poughkeepsie]  within 
twenty  days  after  service  hereof,  exclusive  of  the  day  of  service,  or 
the  plaintiff*  will  take  judgment  against  you  for  the  sum  of  [five 
hundred  dollars]  with  interest  thereon  from  the day  of 1S4 

Dated  &c. 

E.  F.  Plaintiff's  Att'y. 


[  23.  ] 

Affidavit  to  'procure  order  for  pullication  against  a  defendant  who 

cannot  he  personally  served. 

[Title  of  cause.] 

County  of  Schoharie.  E.  G.,  attorney  for  the  plaintiff  in  this 
action  being  sworn,  says  that  a  summons  has  heen  issued  against 
the  defendant  in  this  action,  and  that  the  plaintiff  has  a  cause  of 
action  against  the  defendant  upon  an  account  for  merchandise  sold 
and  delivered  by  the  plaintiff  to  the  defendant,  amounting  to  the 
sum  cf  two  hundred  and  forty-one  dollars,  [or,  upon  a  promissory 
note,  briefly  describing  it,  or  any  other  cause  of  action  embraced  in 
^  125  of  the  Code,  briefly  describiJtg  it,]  [or,  that  the  action  is  for  the 
foreclosure  of  a  mortgage  upon  real  properly,  and  that  E.  F.,  one 
of  the  defendants,  has  a  lien  upon  the  mortgaged  premises  by  judg- 
ment^ and  deponent  further  says  that  the  said  defendant  is  a  resi- 
dent of  this  State,  and  has  property  therein  ;  that  as  he  is  informed 
by  the  annexed  affidavit  of  G.  H.,  sheriff  of  Schoharie  county,  the 
said   defendant  cannot,  after   due   diligence,  be  found  within  this 


s 
State. 

Sworn,  &c 


E.  G. 


PRACTICAL  FORMS.  439 

[  No.  24.  ] 

Affidavit  of  sheriff,  or  other  person,  who  has  had  the  summons  to 

'Serve. 

[Title  of  caifse.] 

Schoharie  County.  G.  H.,  sheriff  of  said  county,  being  sworn, 
says  that  the  summons  in  this  action,  addressed  to  the  above  named 
defendant,  was  delivered  to  deponent  by  E.  F.,  the  plaintiff's 
attorney,  to  be  served  on  the  said  defendant.  That  ascertaining 
that  said  defendant  resided  in  the  town  of  Gilboa,  in  said  county, 
he  went  to  his  residence,  in  said  town,  and  found  the  dwelling 
house  closed,  with  a  padlock  upon  the  outside  door  ;  that  he  exam- 
ined the  interior  of  the  house,  as  far  as  he  was  able,  through  the 
windows,  and  discovered  that  there  was  no  furniture  therein,  but 
the  premises  appeared  as  if  they  had  recently  been  occupied.  That 
deponent  being  unable  to  discover  any  person  in  or  about  the  pre- 
mises, proceeded  to  a  Mr.  A.,  who  resided  about  half  a  mile  from 
said  premises,  and  who  was  the  nearest  neighbor  thereto,  and  was 
told  by  the  said  A.  that  the  said  defendant  was  seen  by  him  at  his 
hcuse  on  the  evening  of  the  Friday  preceding,  and  that  the  next 
morning  he  had  left  with  his  family  and  furniture,  since  which 
time  he  had  not  returned.  Deponent  has  since  been  informed  by 
several  persons,  and  particularly  by  Mr.  B.  and  Mr.  C,  that  said 
defendant  had  left  in  the  night,  and  had  gone  into  the  State  of 
Connecticut  with  his  fanily.  And  deponent  believes  that  the  said 
defendant  has  departed  from  this  State,  with  intent  to  defraud  his 
creditors  (or  to  avoid  the  service  of  the  summons  in  this  suit). 

Sworn,  &c. 

G.  H. 


[  No.  25.  ] 

Order  for  publication  of  the  summons  against  a  defendant  who 

cannot  he  personally  served. 

[Title  of  action.^ 

It  appearing  to  my  satisfaction,  by  the  affidavit  of  A.  B.,  that  a 
cause  of  action  exists  against  the  above  named  defendant,  [or, 
that  the  action  relates  to  real  property  in  this  state,  and  that  he  is 


440  PRACTICAL   FORMS. 

a  necessary  or  proper  party  to  this  action,]  and  that  such  defendant 
cannot  be  found  in  this  state,  I  do  order  that  the  summons  in  this 
action  be  served  on  such  defendant  by  the  publication  thereof,  once 
in  each  week  for  [six]  weeks  in  the  newspaper  printed  in  the  coun- 
ty of  [Oneida,]  called  the  [  ,]  and  also  in  the  newspaper 
printed  in  the  county  of  [Erie,]  called  the  [  ,]  [or  in  the 
state  paper.]  And  I  direct  that  a  copy  of  the  summons  and  com- 
plaint in  this  action  be  forthwith  deposited  in  the  post  office,  di- 
rected to  the  said  defendant,  at  his  place  of  residence.  [This  may 
be  omitted  where  the  defendant's  residence  is  not  known,  or  can- 
not with  reasonable  diligence  be  ascertained.] 
Dated,  &c. 

E.  F.,  Justice  of  Sup.  Ct. 


[  No.  26.  ] 
Affidavit  of  service  of  stC7nmo?is. 

[Title  of  cause.] 

Rensselaer  county. — A.  B.,  of  the  city  of  Troy,  in  said  county, 
being  sworn,  says,  that  on  the  first  day  of  July,  1849,  he  served  a 
copy  of  the  summons  issued  in  this  cause,  and  which  is  hereto  an- 
nexed, upon  CD.,  the  defendant  therein,  and  to  whom  the  same 
is  addressed,  and  whom  deponent  knew  to  be  the  person  men- 
tioned and  described  in  the  said  summons  as  defendant  therein, 
by  delivering  such  copy  to,  and  leaving  the  same  with  said  de- 
fendant, at  [his  dwelling  house,]  [or  at  his  blacksmith's  shop,]  [or 
at  his  store,]  in  the  tcwn  of  Sandlake  in  said  county. 

Sworn  before  me,  &c. 

A.  B. 


[  No.  27.  ] 
Affidavit  for  attachment. 

[Title  of  cause.] 

County  of  Essex.  A.  B..  plaintiff  in  this  action,  [or  C.  £>.,    the 
agent  for  the   plaintiff  in  this  action]  being  sworn,  says,    that  the 


PRACTICAL    FORMS.  441 

above  named  defendant  is  indebted  unto  this  deponent  \orthe  above 
named  plaintiff]  in  the  sum  of  [Jive  hundred  dollars,]  upon  a  pro- 
missory note,  for  five  hnndred  and  seventy-one  dollars,  dated  May 
1,  1849,  payable  to  the  plaintifTor  order,  sixty  days  after  date,  [or 
for  goods  ^c.  sold,  or  ivork  and  labor  done  ^c,  as  the  case  may  be;] 
that  a  summons  in  the  said  action  has  been  issued  [or  is  about  to  be 
issued]  to  be  served  on  the  said  defendant  in  the  said  action. 

And  deponent  further  says,  that  the  said  defendant  is  a  [foreign 
corporation,  having  its  office  and  place  of  business  at  Burlington  in 
the  state  of  Vermont,]  [or  that  the  said  defendant  is  not  a  resident 
of  this  state,  but  a  resident  of  Amherst  in  the  state  of  Massachu- 
setts,] [or  that  the  said  defendant  has  departed  from  this  state  with 
intent  to  defraud  his  creditors,  (or  to  avoid  the  service  of  a  summons 
upon  him.)     [Here  state  the  facts  and  circumstances  upon  which  the 
allegation  that  the  defendant  has  departed  ^c.  is  founded,  as  that  he 
has  lately  beeii  engaged  in  converting  his  property  into  vioney,  or  has 
sold  the  goods  in  his  store,  or  his  stock  and  farmiiig  utensils,  for  a 
less  price  than  their  real  value,  or  has  sold  off  his  hotisehold  furniture 
and  has  been  busily  engaged  in  collecting  in  all  debts  a7id  money  oiv- 
ing  to  him,  and  that  he  left  his  family  on  Friday  last,  stating  to  de- 
ponent and  others  that  he  was  going  to  the  city  of  New-  Fork  to  pur- 
chase goods;  that  since  that  timt  he  has  not  returned  to  his  said  res- 
idence; that  deponent  has  inquired  of  his  wife  where  said  defendant 
had  gone  to,  a)id  when  he  would  return,  and  was  told  that  he  had 
gone  to  New- York  city,  and  would  be  back  in  a  day  or  two;  that  de- 
po}i€?it  has  been  informed  by  J.  K.  of  SfC.  that  he  saw  said  defendant 
on  Monday  last  at  Buffalo,  and  that  said  defendant  informed  said  J, 
R.  that  he  was  then  going  to  the  state  of  Wisconsin,  and  intended  to 
picrchase  a  tract  of  land  in  that  slate,  and  after  he  was  located,  he 
should  send  for   his  Jamily.     {Annex  the  affidavit  of  the  informant.) 
State  a?iy  other  facts  or  circumstances  indicatiyig  an  intention  to  ab- 
scond,] or  that  the  said    defendant  keeps  himself  concealed  within 
this  state  to  defraud  his  creditors  or  avoid  the  service  of  a  summons 
upon  him.     [State  the  facts  a7id  circumstances  upon  which  the  alle- 
gatiofi  is  founded.] 
Sworn,  &c. 


442  PRACTICAL    FORMS. 

[  No.  28.  ] 
Undertaking  fo?-  attachment. 

[Title  of  cause.] 

Whereas,  an  application  has  been  made  by  the  above  named 
plaintiff,  to  the  Honorable  Seward  Barculo,  one  of  the  justices  of 
the  Supreme  Court,  for  a  warrant  of  attachment  against  the  pro- 
perty of  the  above  named  defendant,  as  [a  non-resident  of  this  state, 
or  a  foreign  corporation,  or,  an  absconding  or  concealed  debtor.] 
Now  therefore  we,  N.  P.  of  &c.,  machinist,  and  R.  S.  of  &c.,  cabi- 
net maker,  undertake,  that  if  the  said  defendant  recovers  judgment 
in  this  action,  the  plaintiff  shall  pay  all  costs  that  may  be  awarded 
to  the  said  defendant,  and  all  damages  which  he  may  sustain  by 
reason  of  the  said  attachment,  not  exceeding  the  sum  of  [two  hun- 
dred and  fifty  dollars.] 

Dated,  &c., 

R.  S. 
[Add  affidavit  of  justification  and  proof  or  acknowledgment  as  in 
Nos.  33,  34.] 


[  No.  29.  ] 
Warrant  of  attachment. 

The  people  of  the  State  of  New-York,  to  the  sheriff  of  the  coun- 
ty of  Ulster  greeting : 

Whereas,  an  application  has  been  made  to  the  officer  signing 
this  warrant,  by  A.  B.,  for  an  attachment  against  the  property  of  C. 
D.,  setting  forth  by  affidavit,  that  a  cause  of  action  exists  against  the 
said  C.  D.,  and  the  grounds  thereof,  and  that  the  said  C.  D.  is  [a  non- 
resident of  the  State  of  New-York,]  or  is  [a  foreign  corporation,] 
or  [has  departed  from  this  State,  with  intent  to  defraud  his  credi- 
tors, or  to  avoid  the  service  of  a  summons,]  or  keeps  himself  con- 
cealed within  this  State,  with  intent  to  defraud  his  creditors,  or  to 
avoid  the  service  of  a  summons  on  him,]  and  the  said  plaintiff 
having  also  given  the  undertaking  required  by  law  : 

Now  you  are  hereby  commanded  to  attach  and  safely  keep  all 
the  property  of  the  said  C.  D.,  within  your  county,  and  that  you 
proceed  hereon  in  the  manner  required  of  you  by  law. 


PRACTICAL   FORMS.  443 

Given  under  my  hand,  at  the   city  of  Albany,  this  tenth  day  of 
August,  in  the  year  one  thousand  eight  hundred  and  forty-nine. 

A.  J.  PARKER,  Just.  Sup.  Court. 


[  No.  30.  ] 

Notice  of  application  to  discharge  attachment. 

[Title  of  cause.] 

To  E.  F.,  Plff's  Att'y., 
Sir, 

Take  notice  that  I  shall  apply  to  the  Hon.  Ira  Harris,  [or  to  G. 
H.  county  judge  of,  &c.,]  at  &c.,  on  &c.,  for  an  order  discharging 
the  attachment  in  this  action. 
Dated,  &c. 

Yours,  &c., 

J.  K.,  Def'ts  Att'y. 


[  No.  31.  ] 
Undertaking  thereon. 

[Title  of  cause.] 

Whereas,  a  warrant  of  attachment,  has  been  granted  against  the 
property  of  the  above  defendant,  now  therefore,  we  E.  F.,  of  &c., 
farmer,  and  G.  H.  of  &c.,  tanner,  both  freeholders,  will  on  demand 
pay  to  the  plaintiff,  the  amount  of  the  judgment  that  may  be  re- 
covered against  the  defendant  in  the  said  action,  not  exceeding 
however  the  sum  of  five  hundred  dollars,  [double  the  sum  claimed 
by  the  plaintiff  in  the  complaint.] 

Dated,  &c.  _    ^ 

E.  F 

G.  H. 


444  PRACTICAL    FORMS. 

\ 
I 

[  No.  32.  ]  . 

Undertaking  on  granting  injunction. 

[Title  of  cause.'] 

The  above  named  plaintiff  having  applied  to  the  Hon.  John  W. 

Edmonds,  a  justice  of  this  court,  [or  to  the  Hon.  Lyman  Tremain, 

county  judge  of  Greene  county,]  for  an  injunction  restraining  the 

defendant  from  cutting,   destroying  or  disposing  of  any  wood  or 

timber    growing  or  standing  upon  the  premises  described  in  the 

complaint  in  this  action,   as  therein  particularly  mentioned,  we, 

E.  F.,  of,  &c.,  grocer,  and  G.  H.,  of,  &c.,  merchant,  undertake  that 

the  plaintiff  shall  pay  to  the  defendant  so  enjoined  such  damages 

not  exceeding  the  sum  of  [five  hundred  dollars]  as  he  may  sustain 

by  reason  of  such  injunction,  if  the  court  shall  finally  decide  that 

the  said  plaintiff  is  not  entitled  thereto. 

Dated,  &c. 

E.  F. 

G.  H. 


[  No.  33.  ] 
Affidavit  of  justification. 

[City  and]  county  of  New  York. — E.  F.  of  the  city  of  New  York, 
and  G.  H.  of  the  same  place,  being  each  duly  sworn,  doth  each  for 
himself  depose  and  say,  that  he  is  a  resident  and  [freeholder  or 
householder]  within  this  state,  and  is  worth  the  sum  of  five  hun- 
dred dollars  over  and  above  all  his  debts  and  responsibilities  which 
he  owes  or  has  incurred. 

Sworn,  &c. 


[  No.  34.  ] 

Proof  or  acknowledgement  annexed. 

City  and  county  of  New  York. — On  this  first  day  of  August, 
1849,  personally  appeared  before  me  E.  F.  and  G.  H.,  to  me  well 
known   to  be  the   individuals  described   in  and  who  executed  the 


PRACTICAL   FORMS.  445 

foregoing  undertaking,  and  severally  acknowledged  that  they  ex- 
ecuted the  same. 

R.  P.,  Commissioner  of  Deeds. 


[  No.  35.  ] 

Injunction  by  order. 

It  appearing  satisfactorily  to  me  by  the  affidavit  of  A,  B.,  the 
plaintiff,  [or  of  G.  H.,  agent  for  the  plaintiff,]  that  sufficient  grounds 
therefor  exist :  I  do  hereby  order  that  the  defendant  [naming  him 
or  them,  if  any  particular  one  or  more]  do  refrain  from  cutting, 
destroying,  or  in  any  way  disposing  of  any  wood  or  timber  now 
standing  or  growing  upon  that  certain  farm  of  land  lying  and  being 
in  the  town  of  White  Plains,  and  county  of  Westchester,  [describe 
premises,']  [or  from  committing  any  destruction  or  waste  upon  said 
premises,]  [or  from  the  building  and  erection  of  any  house,  store  or 
other  building  against  the  premises  of  the  plaintiff,  or  in  any  man- 
ner, obstructing  the  windows  and  light  of  the  said  plaintiff,]  until 
the  further  order  of  this  court,  and  in  case  of  disobedience  to  this 
order,  you  will  be  liable  to  the  punishment  therefor  prescribed  by 
law. 

Dated,  &c. 

J.  K.,  Justice,  or 

L.  M.,  County  Judge. 


[  No.  36.  ] 
Undertaking,  for  injunction  against  a  corporation. 

\Title  of  the  cause."] 

Whereas,  A.  B.  has  applied  for  an  injunction  to  suspend  the 
general  and  ordinary  business  of  the  defendant,  which  is  a  corpo- 
ration. Now,  therefore,  we,  I.  N.,  of,  &c.,  merchant,  and  L.  P., 
of,  &c.,  farmer,  undertake  that  the  plaintiff  shall  pay  all  damages, 
not  exceeding  the  sum  of  [one  thouband  dollars],  which  such  cor- 
poration shall  sustain,  by  reason  of  the  injunction,  if  the  court  shall 
finally  decide  that  the  plaintiff  was  not  entitled  to  such  injunction. 

Dated,  &c.  ^    ,^ 

I.  N. 

L.  P. 


446  PRACTICAL   FORMS.  ; 

[  No.  37.  ] 

Affidavit  of  sureties  annexed. 

[Title  of  cause.} 

Wayne  county.— I.  N.,  of,  &c.,  and  L.  P.,  of,  &c.,  being  each 

duly  sworn,    doth  each  for  himself  depose  and   say,    that  he  is  a 

householder  for  freeholder]  of  the  state  of  New-York,  and  is  worth 

the   sum  of  [one  thousand   dollars]   over  and  above  all  debts  and 

responsibilities  he  owes  or  has  incurred. 

Sworn,  &c. 

I.  N. 

L.  P. 


[  No.  38.  ] 

Approval  of  judge  endorsed. 

I  approve  of  the  within  undertaking,  as  to  its  form  and  manner 

of  execution,  and  do  certify  that  each  of  the  persons  named  therein 

as  sureties,  is  worth  the  sum  of  [one  thousand  dollars,]   over  and 

above  all  debts  and  responsibilities  he  owes  or  has  incurred. 

Dated,  &;c. 

J.  R.,  Justice  Sup.  Ct. 

[Add  proof  of  acknowledgement  as  in  No.  34.] 


[  No.  39.  ] 
Notice  of  motion  to  dissolve  injicnction. 

[Title  of  cause.] 

To  E.  F.  PltfT's  Att'y. 

Sir: 

Take  notice,  that  I  shall  move  this  court,  at  a  special  term 
thereof,  to  be  held  at  the  City  Hall,  in  the  city  of  Albany,  on  the 
last  Tuesday  of  October  next,  at  the  opening  of  the  court,  for  an 
order  dissolving  [or  modifying]  the  injunction  granted  and  served 
in  this  action,  or  for  such  other  relief  as  the  court  may  grant,  which 


PRACTICAL    FORMS.  447 

motion  will   be  founded  upon   the   complaint  and  answer  in  this 
cause. 

Dated  &c. 

Yours,  &c. 

G.  H.  Deft's  Att'y. 


[  No.  40.  ] 

Affidavit  on  claim  of  delivery  of  personal  property. 

County  of  Yates: — A.  B.  (or  E.  F.  the  agent  or  clerk  of  the) 
Plaintiff  in  this  action,  being  duly  sworn,  says,  that  (he  is  the 
owner)  or  (that  the  said  A.  B.  is  the  owner,)  or  (entitled  to  the  pos- 
session) of  the  following  personal  property  claimed  in  this  action, 
that  is  to  say :  (one  span  of  grey  mares,)  (or  one  mahogany  sofa, 
with  tufted  hair-cloth  cushion  and  back,  and  ten  French  mahogany 
chairs,  with  tufted  hair-cloth  seats,)  or  (one  single  buggy  waggon, 
with  leather  top  and  painted  black,)  that  the  said  property  is  wrong- 
fully detained  from  the  plaintiff  by  (E.  F.  the  agent,  or  servant, 
orsonof)the  defendant  herein.  That  the  alleged  cause  of  the 
detention  thereof  according  to  this  deponent's  best  knowledge,  infor- 
mation and  belief,  is  as  follows  :  (a  pretended  sale  of  the  said  pro- 
perty to  said  defendant  by  one  G.  H.)  or  (that  the  same  is  held  by 
virtue  of  a  levy,  under  an  execution  in  favor  of  J.  K.  against  L. 
M.)  that  the  said  property  has  not  been  taken  for  a  tax,  assessment 
or  fine,  pursuant  to  a  statue,  or  seized  under  an  execution  or  attach- 
ment against  the  property  of  the  plaintiff,  and  that  the  actual  value 
of  said  property,  according  to  the  best  knowledge  and  belief  of  this 
deponent,  is  (one  hundred  dollars.) 


[  No,  41.  ] 

Undertakiyig  on  the  part  of  the  plaintiff  to  obtain  the  delivery  of 

personal  property. 

[THtle  of  cause.] 

Whereas,  the  above  named  plaintiff  has  commenced  [or  is  about 
to  commence]  an  action  against  the  above  named  defendant  for  the 
recovery  of  certain  personal  property  mentioned  and  described  in, 


448  PRACTICAL    FORMS. 

the  affidavit  of  said  plaintiff,  made  for  such  purpose,  to  witt  one 

mahogany  sofa  and  twelve  mahogany  chairs.     Now  therefore,  we, 

A.  B.,  of  the  town  of  Little  Falls,  in  the  county  of  Herkimer,  and 

C.  D.,  of  the  same  place,  do  acknowledge  ourselves  to  be  bound  in 

the  sum  of  one  hundred  and  twenty-five  dollars  for  the  prosecution 

of  the  said  action  for  a  return  of  the  said  property  to  the  defendant, 

if  return  thereof  be  adjudged,  and  for  the  payment  to  him  of  such 

sum  as  may,  for  any  cause,  be  recovered  against  the  plaintiff. 

Dated,  &c. 

(Signed)  A.  B. 

CD. 


[  No.  42.  ] 
Endorsement  of  approval  by  sheriff. 

I  approve  of  th-e  sureties  named  in  the  within  undertaking. 

Dated,  &c. 

A.  B.,  sheriff. 

[Add  justification  of  sureties,  as  in  No.  33,  and  acknowledgment, 

as  in  No.  34.] 


[  No.  43.  ] 

Notice  to  sheriff,  reqiiiri7ig  deliver?/  of  personal  property. 

To  the  sheriff  of  the  county  of  Ulster. 
Take  notice,  that  I  hereby  require  you  to  take  the  personal  pro- 
perty mentioned  and  described  in  the  within  affidavit,  and  deliver 
the  same  to  A.  B.,  the  plaintiff. 
Dated,  &c. 

Yours,  &€,, 

E.  F.,  Pltff's  Att'v. 


[  No.  44.  ] 

Notice  to  sheriff  of  claim  to  personal  property  by  third  person. 

To  J.  K.,  sheriff  of  Ulster  county. 
Take  notice,  that  I  claim  the  personal  property  mentioned  and 


PRACTICAL   FORMS.  449 

aescribed  in  the  within  [or  annexed]  affidavit,  and  require  the  de- 
livery thereof  to  me. 

Dated,  &c. 

Yours,  &a., 

R,  S.,  claimant. 


[  No.  45.  ] 
Affidavit  of  claim  by  third  person, 

County  of  Ulster : — R.  S.  being  sworn,  says  that  he  is  the  owner 
of  (here  describe  property),  taken  by  the  sheriff  of  said  county; 
that  he  purchased  the  same  from  one  J.  P.,  of  the  town  of  Kings- 
ton, in  said  county,  on  the  first  day  of  May  last,  and  paid  therefor 
the  sum  of  one  hundred  dollars  in  cash. 

Sworn,  &C. 


{  No.  46.  ] 
Notice^  by  sheriff,  of  claim  by  third  person, 

[Title  of  ca^ise.] 

To  C.  D.,  Ptff's  Att'y. 
Sir: 

Take  notice,  that  A.  B.  claims  tlie  property  taken  by  me  in 
this  cause,  and  that  I  require  to  be  indemnified  by  the  plaintiflf 
against  such  claim ;  and  in  default  of  such  indemnity,  I  shall  not 
deliver  such  property  to  the  plaintiff,  or  keep  the  same  in  my  pos- 
session. 

Dated,  &c. 

J.  N.,  sheriff. 


[  No.  47.  ] 

Vudertaking  to  indemnify  sheriff,  on  claim  of  property  by  third 

person. 

f  Title  of  cause."] 

Whereas  G.  H.  claims  to  be  the  owner  of,  and  have  the  right 

29 


450  PRACTICAL   FORMS. 

to  the  possession  of  certain  personal  property,  to  wit  [here  describe 
it],  which  has  been  taken  by  J.  R.,  sheriff  of  the  county  of  Greene. 
Now,  therefore,  we,  A.  M.,  of  Catskill,  grocer,  and  P.  S.,  of  same 
place,  farmer,  do  undertake  and  agree  to  indemnify  the  said  J.  K., 
against  such  claim. 
Dated,  6rc. 

A.M. 

P.  S. 

[^Add  justification  of  sureties,  as  in  No.  33,  and  acknowledgement. 
as  in  No.  34.] 


[  No.  48.  ] 

Notice  of  excepti7ig  to  sureties  in  action  for  delivery  of  -personal 

property. 

[  Title  of  cause."] 

To  J.  K.,  Sheriff  of,  &c. 

Take  notice  that  I  except  to  the  sufficiency  of  the  sureties,  to  the 

undertaking  of  the  plaintiff  in  this  action. 

Dated,  &c^ 

Yours,  &c. 

E.  F.,  DefVs  Atty 


[  No  49.  ] 
Notice  to  sheriff  requiring  return  of  property  to  defendant.. 

[Title  of  cause.] 

To  E.  H.,  sheriff,  &c. 
I  hereby  require  the  return  to  me  of  property  taken  by  you  in. 

this  action. 

Yours,  &c. 

e..D.,  Def-t. 


\ 


PRACTICAL  FORMS.  45  I 

[  No.  50.  ] 

UndertaPing  thereupon. 

[Title  of  cause.] 

Whereas  C.  D.,  the  defendant,  requires  the  return  to  him  of 
certain  personal  property,  taken  by  E.  H.,  sheriff  of,  &c.,  in  this 
action,  to  wit  [here  describe  property].  Now,  therefore,  we,  E.  F., 
of,  &c.,  farmer,  and  G.  H.,  of,  &c.,  merchant,  are  bound  in  the  sum 
of  five  hundred  dollars  [double  value  of  the  property  as  stated  in 
plaintiff's  affidavit]  for  the  delivery  thereof  to  the  plaintiff,  if  deliv- 
ery thereof  be  adjudged,  and  for  the  payment  to  him  of  such  sum 
as  may,  for  any  cause,  be  recovered  against  the  defendant. 

Dated,  &c. 

Yours,  &c. 

E.  F. 
G.  H. 

[Add  affidavit  of  justification  of  sureties,  as  iri  No,  33,  and  proof, 
or  acknoioledgnient,  as  in  No.  34.] 


[  No.  51.  ] 

Affidavit  to  hold  to  bail  for  wrongs. 

[Title  of  cause.] 

County  of  Rensselaer: — A.  B.,  plaintiff  in  this  suit,  being  duly 
sworn,  says,  that  he  has  good  cause  of  action  therein  against  the  de- 
fendant, arising  upon  the  following  facts,  viz:  that  on  the  tenth 
day  of  May  last,  at  the  town  of  Nassau,  in  said  county,  the  said 
defendant,  without  any  cause  or  provocation  from  deponent,  com- 
mitted a  violent  assault  upon  deponent,  whereby  deponent  was 
much  bruised  and  injured  ;  [or  that  the  defendent  wrongfully  took 
from  the  possession  of  the  plaintiff  the  following  personal  property, 
(here  describe  it)  and  converted  it  to  his  own  use  ;]  or,  that  the  de- 
fendant, being  in  the  possession  of  the  following  personal  property, 
(here  describe  it)  wrongfully  detained  the  same  from  the  plaintiff, 
who  is  entitled  to  the  possession  thereof;]  or  any  other  cause  of 
action  mentioned  in  ^  179  of  the  Code,  and  this  deponent  believes  he 
is  justly  entitled  to  recover  damages  for  the  grievance  above  men- 
tioned, to  the  sum  of  one   thousand  dollars.     And  this  deponent 


452  PRACTICAL    FOKMS. 

further  sa3's,  that  he  has  commenced  [or  is  about  to  commence]  an 
action  for  the  recovery  of  the  said  damages,  in  the  Supreme  Court, 
And  further  this  deponent  says  not,  &c. 

Sworn,  &c.  A.  B. 


[  No.  52.  ] 

Undertaking  for  order  of  arrest. 

[Title  of  cause.'] 

Whereas,  A.  B.  the  plaintiff  in  the  above  entitled  action,  has 
made  application  to  the  honorable  William  T.  M'Coun,  one  of  the 
Justices  of  the  Supreme  Court  [or  to  J.  N,,  county  judge  of  Queens 
county]  for  an  order  to  arrest  C.  D.  the  defendant  in  said  action. 
Now,  therefore  we,  E.  F.  of  &c.,  farmer,  and  G.  H.,  of  &c.,  gentle- 
man, undertake  that  if  the  said  defendant  recover  judgment,  the 
plaintiff  shall  pay  all  costs  that  may  be  awarded  to  the  defendant, 
and  all  damages  which  he  may  sustain  by  reason  of  the  arrest,  not 
exceeding  the  sum  of  [one  hundred  dollars.] 

Dated  &c. 

E.  F. 
G.  H. 

{Add  afidavit  of  justification  as  in  No.  33,  a7id  proof  or  acknoto- 

ledgmejit  as  iii  No.  34.] 


[  No.  53.  ] 

Order  of  Arrest. 

[Title  of  cause.] 

To  the  sheriff  of  the  county  of  Rensselaer  : 

You  are  required  forthwith  to  arrest  the  defendant  in  this  ac- 
tion and  hold  him  to  bnil  in  the  sum  of  five  hundred  dollars,  and 
to  return  this  order  to  E.  F.,  plaintiff's  attorney  at  the  city  of  Troy 
on  the  first  day  of  September,  one  thousand  eight  hundred  and  for- 
ty-nine. 
Dated  &c. 

IRA  HARRIS, 

_  Justice  Sup.  Ct. 


PRACTICAL   FORMS.  453 

[  No.  54.  1 

Undertaking  of  bail. 

{Title  of  cause.'] 

Whereas,  C.  D.  the  above  named  defendant,  has  been  arrested  in 
this  action.  Now,  therefore,  we  E.  F.  of  the  &c.  grocer,  and  G.  H. 
of  the  &c.  blacksmith,  do  undertake,  that  the  said  defendant  shall 
at  all  times  render  himself  amenable  to  the  process  of  the  court,  du- 
ring the  pendency  of  the  said  action,  and  to  such  as  may  be  issued 
to  enforce  the  judgment  therein. 

Dated  &c. 

E.  F. 
G.  H. 

[^Add  justification  of  sureties,  as  in  No.  33,  and  proof  or  acknou?- 

ledgment  as  in  No.  34.] 


[  No.  55.  ] 

The  like  where  the  defendant  has  been  arrested  in  an  action  to  recootr 
the  possession  of  personal  property. 

[Title  of  cause.) 

Whereas,  the  above  entitled  action  has  been  brought  to  recover  the 
possession  of  personal  property,  which  is  alleged  to  be  unjustly  de- 
tained, and  which  is  as  follows  :  (here  describe  the  property,)  and 
whereas  C.  D.  the  defendant  in  such  action  has  been  arrested  there- 
in. Now,  therefore,  we,  E.  F.,  of  &c.  farmer,  and  G,  H.  of  &c., 
innkeeper,  do  acknowledge  ourselves  to  be  bound  in  the  sum  of 
[^double  the  value  of  the  property  as  stated  in  the  affidavit]  for  the  de- 
livery of  the  said  personal  property  to  the  plaintiff,  if  such  delivery 
be  adjudged,  and  for  the  payment  to  him,  of  such  sum  as  may,  for 
any  cause  be  recovered  against  the  defendant. 

Dated  &c. 

E.  F. 

G.  H. 


454  PRACTICAL   FORMS. 

[  No.  56.  ] 

Notice  of  excepting  to  hail. 

[Title  of  cause.'] 

To  E.  F.,  Defts  Att'y. 
Sir: 

Take  notice  that  I  do   not    accept  the  bail  put  in  by  the?  de- 
fendant, in  this  action. 
Dated,  &c., 

Yours,  &c., 

J.  K,  Ph'f  Att'y. 


[  No.  57.  ] 

Certificate  of  deposite  of  money  in  lieu  of  bail. 

[Title  of  cause.] 

This  is  to  certify  that  I  have  received  from   the  defendant  the        i 
sum  of  one  thousand  dollars,   as  a  deposit,  being  the  amount  men- 
tioned in  the  order  of  arrest  in  this  action. 
Dated,  &c. 

J.  K.,  Sheriff  of 

Albany  county. 


I 


[  No.  58.  ] 
Certificate  by  clerk. 

[Title  of  cause.] 

I  certify  that  J.  K.,  sheriff  of  Albany  county,  has   this  day  paid 
into  court  the  sum  of  one  thousand  dollars,  being  the  amount  men- 
tioned in  the  order  of  arrest  in  this  action. 
Dated,  &c. 

{^Duplicate.) 

O.  P.,  Clerk  of 

Albany  county. 


I 


5>11ACTICAL   FORMS. 


455 


[  No.  59.  ] 
Notice  of  motion  to  vacate  or  modify  order  of  arrest. 

[Title  of  cause-l 

To  E.  F.,  Pltfs  Att'y. 
Sir: 

.  Take  notice,  that  I  shall  move  this  court,  at  the  special  term 
thereof,  to  be  held  at  the  court  house  in  the  city  of  Utica,  on  the 
first  Monday  of  October  next,  at  the  opening  of  the  court,  to  vacate 
[or  modify]  the  order  of  arrest  in  this  action,  [or  to  mitigate  the 
amount  of  the  bail,]  and  for  such  other  or  for  such  further  relief 
as  the  court  may  grant,  which  motion  will  be  founded  upon  the 
affidavit,  upon  which  the  order  of  arrest  was  granted,  [or  upon  the 
affidavits,  copies  of  which  are  herewith  served  on  you.] 
Dated,  &c. 

Yours, 

A.  M.,def'ts  Att'y. 


[  No.  60.  ] 

Notice  of  bail  justifying. 

[Title  of  cause.] 

ToE.  F.,  Pltfs  Att'y. 
Sir: 

Take  notice,  that  the  bail-in  this  action  will  justify  before  J. 
K.,  a  justice  of  this  court,  [or  county  judge  of  Albany  county,]  or 
L.  M.,  [a  justice  of  the  peace  of  Albany  county,]  at  &c.,   on  the 
tenth  day  of  August  next  at  ten  o'clock  in  the  forenoon. 
Dated,  &;c. 

Yours,  &c., 
.  N.  P.,  Def'ts  Att'y,  or 

'  '  R.  S.,  Sheriff- of 

'  Albany  county. 


456  PRACTICAL    FORMS. 

[  No.  61.  ] 
Notice  of  other  bail. 

[Title  of  cause.] 

To  E.  F,,  Pltfs  Atty. 
Sir: 

Take  notice,  that  John  Stiles,  hatter,  of  the  city  of  Albany^ 
and  Peter  Nokes,  merchant,  of  the  same  place,  who  are  proposed 
as  bail  in  the  places  of  James  Jackson  and  John  Doe,  the  bail  al- 
ready put  in,  will  justify,  (same  as  in  last  form.) 


[  No.  62.  ] 

Certificate  of  surrender. 

[Title  of  cause.] 

I,  certify  that  C.  D.,  the  defendant  in  this  action  has  this  day  sur- 
rendered himself  to  me  [or  been  surrendered  to  me  by  his  bail,], 
and  is  now  in  my  custody. 

Dated,  &c. 

Yours  &c., 

A.  K. 
Sheriff  of  Monroe  co. 


[  No.  63.  ] 
Notice  to  plaintiff  that  hail  will  be  exonerated, 

[Title  of  cause.] 

To  J.   K.  Pltff's  Att'y. 
Sir : 

Take  notice,  that  upon  the  certificate,  a  copy  whereof  is  hereto 

annexed,  we  shall  apply  to  the  Hon.  M.  Watson,  a  Justice  of  thi» 
Court,  at  his  chambers  in  the  village  of  Catskill,  for  an  order  exon- 
erating us    from    all    liability  as    bail   for   the    defendant   in  this 

action. 
Dated  &c. 

Yours,  &c. 

A.  P.  and 
C.  L.  bail. 


PRACTICAL    FORMS.  457 

[  No.  64.  ] 

Order  exonerating  bail. 

[Title  of  cause.] 

Proof  of  due  service  of  notice  of  an  application  to  me  to  exone- 
rate the  bail  in  this  action,  on  the  plaintiff's  attorney,  having  been 
furnished  to  me,  I  do  hereby  order  that  the  bail  of  the  defendant 
in  this  action  be  exonerated. 

Dated  &c. 

J.  K.,  Justice  Sup.  Ct. 


[  No.  65.  ] 
Complaint  for  moneys  generally. 


StrPREME  Court. — County  of  Ulster. 
A.  B.,  Plai7itiff, 


agt. 


C.  D.,  Defendant. 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  this  Court,  that  the  defendant  is  indebted  to  the  plaintiff  for 
moneys  by  the  plaintiff,  paid  for  the  defendant  in  the  sums  at  or 
about  the  dates  to  the  persons  and  under  the  circumstances  follow- 
ing, that  is  to  say;  the  sum  of  one  hundred  dollars  paid  to  one 
James  Jackson,  on  the  first  day  of  May,  1849,  for  a  school  bill 
against  said  defendant :  the  sum  of  ten  dollars  to  one  Peter  Nokes, 
on  the  first  day  of  February,  1849,  for  taxes  due  from  the  defend- 
ant, which  several  sums  the  plaintiff  paid  at  the  request  of  the  de- 
fendant. The  plaintiff  claims  the  sum  of  one  hundred  and  ten 
dollars,  with  interest  from  the  above  dates  respectively,  for  which 

the  plaintiff  demand  judgment. 

J.  K.,  Plff's  Att'y. 


[  No.  m.  1 
Complaint  on  Promissory  Note,  against  all  the  parties. 

[Title  of  cause,  same  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectively  show  to 
this  court,  that  on  the  first  day  of  July,  one  thousand  eight  hun- 


458  PRACTICAL   FORMS. 

dred  and  forty-nine,  the  defendant  C.  D.,  at  the  city  of  Buffalo, 
made  his  certain  promissory  note  in  writing,  whereby  he  promised 
to  pay  to  E.  F.,  or  order,  the  sum  of  one  thousand  dollars,  sixty 
days  after  the  date  thereof,  and  that  the  payee  thereof  endorsed 
the  said  note  to  the  defendant  G.  H.,  who  endorsed  the  same  to  the 
plaintiff  that  when  the  said  note  became  due,  it  was  duly  pre- 
sented for  payment  to  the  defendant  C.  D.,  and  payment  thereof 
was  duly  demanded,  but  the  same  was  not  paid  ^  whereof  due 
notice  was  given  to  the  defendants  E.  F.  and  G.  H.  And  the 
plaintiff  further  says  that  he  is  still  the  owner  and  holder  of  th« 
said  note,  and  that  the  defendants  are  indebted  to  him  upon  the 
same,  in  the  sum  of  one  thousand  dollars  principal,  together  with 
interest  thereon,  from  the  fourth  day  of  August,  one  thousand  eight 
hundred  and  forty-nine,  for  which,  principal  sum  and  interest, 
the  plaintiff  demands  judgment  against  the  said  maker  and  en- 
dorsers of  the  said  note  respectively. 

J,  R.,  plff's  Att'y. 


[  No.  67.  ] 

Complaint  en  a  'promissory  note  against  endorser. 

\Tllle  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  this  court,  that  on  the  first  day  of  May  one  thousand  eight  hun- 
dred and  forty-nine,  one  E.  H.  made  his  promissory  note  in  writing, 
whereby  he  promised  to  pay  the  defendant  C.  D.  or  order,  the  sum 
of  one  hundred  dollars,  six  months  after  date,  with  interest,  and 
the  defendant  afterwards  endorsed  the  said  promissory  note,  and 
transferred  the  same  to  the  plaintiff.  And  the  pi  intiff  further  says 
that  when  the  said  promissory  note  became  due  and  payable,  the 
same  was  duly  presented  to  the  maker  thereof  for  payment,  and 
payment  thereof  was  demanded  of  the  said  maker  who  neglected 
to  pay  the  same  ;  whereof  the  defendant  was  duly  notified.  Yet 
the  riainliff  says  that  the  said  defendant  has  not  paid  the  said 
promissory  note,  but  remains  indebted  to  the  plaintiff  thereupon  in 
the  sum  of  one  hundred  dollars,  besides  interest,  for  which  sum 
with  interest  from  the  first  day  of  May  one  thousand  eight  hundred 
and  forty-nine,  the  plaintiff  demands  judgment. 

E.  G.  plff's  Att'y. 


PRACTICAL   FORMS.  459 

[  No.  68.  ] 
Compltzint  on  a  promissory  note,  endorsee  against  maker. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  this  court,  that  the  defendant  on  the  eighth  day  of  January  one 
thousand  eight  hundred  and  forty-nine,  made  his  promissory  note 
in  writing,  whereby  four  months  after  the  date  thereof  he  promised 
to  pay  one  E.  F.,  or  order,  the  sum  of  five  hundred  dollars,  with  in- 
terest, and  the  said  payee  thereof  endorsed  the  said  note  to  the 
plaintiff;  that  the  plaintiff  is  the  lawful  holder  of  the  said  promis- 
sory note,  and  the  defendant  is  justly  indebted  to  him  therefor  in 
the  sum  of  five  hundred  dollars,  principal,  together  with  interest 
thereon  from  the  eighth  day  of  May  one  thousand  eight  hundred 
and  forty-nine,  for  which  principal  sum  and  interest  the  plaintiff 
demands  judgment. 

C.  K.  Plff's  Att'y. 


[  No.  69.  ] 
Complaint  on  promissory  note,  payee  or  bearer  against  maker. 

[Title  of  cause  as  in  No.  65.]  / 

The  complaint  of  the  above  named   plaintiff  respectfully  shows 
to  this  court  that  the  defendant  heretofore  at  Ballston,  made  his  pro- 
missory note  in  writing,  bearing  date  on  the  first  day  of  January, 
one  thousand  eight  hundred  and  forty-eight,  whereby  he  promised 
to  pay  the  plaintiff  (or  E.  F.  or  bearer)  the  sum  of  one  hundred 
dollars  with  interest,  and  although  the  said  note   became  due  and 
payable  before  the  commencement  of  this  action,  yet  the  defendant 
has  not  paid  the  same.     And   the  plaintiff  further  says  that   he  is 
now  the  lawful  owner  and  holder  of  said  note,  and  that  the  defend- 
ant is  justly  indebted  to  him  thereupon  in  the  sum  of  one  hundred 
dollars  principal,  together  with  interest  from  the  first  day  of  January, 
1848. 

Wherefore  the  plaintiff  demands  judgment   against  the  defend- 
ant for  the  said  principal  sum  and  interest. 

G.  H.  Plff's  Att'y. 


460  PRACTICAL   FORMS. 

[  No.  70.  ] 

Complaint  for  moiieypaid,  S/'C. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  this  court,  that  on  or  about  the  first  day  of  January  one  thousand 
eight  hundred  and  forty  eight,  the  plaintiff  paid,  laid  out  and  ex- 
pended for  the  defendant  under  the  following  circumstances,  that  is 
to  say,  an  account  owing  by  the  defendant  to  E.  F  ,  or  (taxes  owing 
by  the  defendant),  or  (a  school  bill  owing  by  the  defendant),  the 
sum  of  one  hundred  dollars,  which  the  defendant  was  and  is  legally 
bound  to  pay  to  the  plaintiff.  Yet  the  plaintiff  says  that  the  defend- 
ant has  not  paid  the  same,  but  remains  indebted  to  the  plaintiff 
thereupon  in  the  sum  of  one  hundred  dollars  principal,  together 
with  interest  thereon  from  the  first  day  of  January,  one  thousand 
eight  hundred  and  forty-eight,  for  which  principal  sum  and  interest 

the  plaintiff  demands  judgment. 

G.  H.,  Plt'ff's  Att'y- 


[  No.  71.  ] 

Complaint  on  bill  of  Exchayige  against  acceptor. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  this  court,  that  on  the  first  day  of  July,  one  thousand  eight  hun- 
dred and  forty-seven,  C.  D.,  at  the  city  of  Utica,  made  his  bill  of 
exchange  in  writing,  and  directed  the  same  to  E.  F.,  at  the  city  of 
New-York,  and  thereby  required  the  said  E.  F.,  to  pay  to  G.  H.,  or 
order,  the  sum  of  five  hundred  dollars,  at  sight,  and  then  and  there 
delivered  the  said  bill  to  the  said  G.  H.  (who  transferred  the  same 
by  endorsement  thereon  to  the  plaintiff) ;  and  the  said  plaintiff 
further  says,  that  on  the  tenth  day  of  July,  one  thousand  eight  hun- 
dred and  forty-seven,  the  said  bill  was  duly  presented  to  the  defend- 
ant for  acceptance,  and  that  the  defendant  thereupon  duly  accepted 
the  same.  And  the  plaintiff  further  says  that  he  is  now  the  lawful 
ownrr  and  holder  of  the  said  bill,  and  the  defendant  is  justly  in- 
debted to  him  therefor  in  the  sum  of  five  hundred  dollars  principal, 
together  with  interest  thereon,  from  the  tenth  day  of  July  one  thou- 


PRACTICAL   FORMS.  461 

sand  eight  hundred  and  forty-seven,  for  which  principal  sum  and 

interest  the  plaintiff  demands  judgment. 

J.  K.,  Plt'ff's  Att'y. 


[  No.  72.  ] 

Complaint  on  inland  hill  of  exchange  agai7i$t  drawer  and  eyidorsers 

for  non-accepta?ice. 

[Title  of  cause  us  in  No.  65.] 

The  CQMiplaint  of  the  above  named  plaintiff  respectfully  shows 
to  this  court,  that  on  the  first  day  of  March,  one  thousand  eight  hun- 
dred and  forty-nine,  the  defendant,  C.  D.,  at  the  city  of  Albany, 
made  his  bill  of  exchange  in  writing,  and  directed  the  same  to  one 
J.  K.,  at  the  village  of  Little  Falls,  and  thereby  required  the  said 
J.  K.,  sixty  days  after  the  date  thereof,  to  pay  to  the  defendant,  E. 
F.,  the  sum  of  one  thousand  dollars;  and  then  and  there  delivered 
the  said  bill  to  the  defendant  E.  F.,  who  endorsed  the  same  to  the 
defendant,  G.  H.,  who  endorsed  the  same  to  the  plaintiff;  and  the 
said  plaintiff  further  says  that  the  said  bill  was,  on  the  third  day  of 
March,  one  thousand  eight  hundred  and  furty-nine,  duly  presented 
to  the  said  J.  K.  for  acceptance,  and  that  the  said  J.  K.  then  de- 
clined and  refused  to  accept  the  same,  whereof  the  defendants  re- 
spectively had  due  notice.  And  the  plaintiff  further  says  that  he  is 
now  the  lawful  owner  and  holder  of  the  said  bill,  and  the  defend- 
ants are  justly  indebted  to  him  therefor  in  the  sum  of  one  thousand 
dollars  principal,  together  with  interest  thereon  from  the  first  day 
of  May,  one  thousand  eight  hundred  and  forty-nine,  for  which  prin- 
cipal sum  and  interest  the  plaintiff  demands  judgment  against  the 
said  drawer  and  endorsers  of  the  said  bill  respectively. 

G.  0.,  Plt'ff's  Att'y. 


[  No.  73.  ] 

Complaint  on  i?iland  bill  of  exchange  agairist  eiidorser  for  non- 
acceptance. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectful!)''  shows 
to  this  court,  that  on  the  first  day  of  January,  one  thousand  eight* 


462  PRACTICAL    FORMS. 

hundred  and  forty-eight,  E.  F.,  at  the  city  of  Buffalo,  made  his 
bill  of  exchange  in  writing,  and  directed  the  same  to  G.  H.,  at  the 
city  of  Albany,  and  thereby  required  the  said  G.  H.  to  pay  to  J.  K. 
the  sum  of  five  hundred  dollars  at  sight,  and  then  and  there 
delivered  the  said  bill  to  the  said  J.  K.,  who  endorsed  the  same  to 
the  plaintiff',  (or  to  L.  M.,  who  endorsed  the  same  to  the  plaintiff';) 
and  the  said  plaintiff'  further  says,  that  the  said  bill  was  duly  pre- 
sented to  the  said  G.  H.  on  the  tenth  day  of  January,  1848,  for 
acceptance,  and  that  the  said  G.  H.  declined  and  refused  to  accept 
the  same,  whereof  the  defendant,  J.  K.,  had  due  notice.  And  the 
plaintiff'  further  says  that  he  is  now  the  lawful  owner  and  holder 
of  the  said  bill,  and  the  defendant  is  justly  indebted  to  him  therefor 
in  the  sum  of  five  hundred  dollars  principal,  together  with  interest 
thereon  from  the  tenth  day  of  January,  one  thousand  eight  hundred 
and  forty-eight,  for  which  principal  sum  and  interest,  the  plaintiff 

demands  judgment. 

N.  O.,  Pltfi'-s  Att'y. 


[  No.  74.  ] 

Complaint  on   inland  hill  of  exchange  against  endorser  for  rwU' 

'payment. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff",  respectfully  show*s 
to  this  Court,  that  on  the  first  day  of  January  one  thousand  eight 
hundred  and  forty  eight,  E.  F.,  at  Penn  Yan,  in  said  county,  made 
his  bill  of  exchange  in  writing,  and  directed  the  same  to  C.  D.  at 
the  city  of  Albany,  and  thereby  required  the  said  C.  D.  to  pay  to 
the  plaintiff' the  sum  of  five  hundred  dollars,  at  sight,  and  then  and 
there  delivered  the  said  bill  to  the  said  C.  D.  who  endorsed  the 
same  to  the  plaintiff",  [or  to  G.  N.  or  order,  who  endorsed  the 
same  to  the  plaintiff"]  and  tht  said  paintiff"  further  says  that  the  said 
bill  was  duly  presented  to  and  accepted  by  the  said  C.  D.  and  that 
when  the  said  bill  became  due  and  payable  according  to  the  tenor 
and  eff'ect  thereof,  the  same  was  duly  presented  to  the  said  accept- 
or at  the  city  of  Albany,  on  the  tenth  day  of  January  1849,  for  pay- 
ment, and  payment  thereof  was  then  and  there  duly  demanded,  but 
the  said  acceptor  then  and  there  wholly  declined  and  refused  to  pay 
the  same,  whereof  the  defendant  C.  D.  had  due  notice.  And  the 
plaintiff' further  says  that  he  is  now  the  lawful  owner  and  holder  of 


PRACTICAL    FORMS.  463 

the  said  bill,  and  the  defendant  is  justly  indebted    to  him  therefor 

in  the  sum  of  five  hundred    dollars  principal,  together  with  interest 

thereon  from  the  tenth  day  of  January  one  thousand  eight  hundred 

and  forty-eight,  for  which  principal  sum    and  interest,  the  plaintiff 

demands  judgment. 

J.  K.,  Pltff's  Att'y. 


[  No.  75.  1 

Complaint  on  inland,  hill  of  exchange  by  payee  against  drawer  on 

non-payment. 

[Title  of  caiise  as  in  No.  66.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  th:s  court,  that  on  the  first  day  of  January,  one  thousand  eight 
hundred  and  forty-eight,  the  defendant,  at  Goshen  in  said  county, 
made  his  bill  of  exchange  in  writing  and  directed  the  same  to  E. 
F.  at  the  city  of  New- York,  and  thereby  required  the  said  E.  F.  ta 
pay  to  the  plaintiff  the  sum  of  five  hundred  dollars,  sixty  days  after 
date,  and  the  said  plaintiff  further  says  that  afterwards  when  the 
said  bill  became  due  and  payable  according  to  the  tenor  and  effect 
thereof,  the  same  was  duly  presented  to  the  said  E.  F.  for  payment, 
at  his  office  in  the  city  of  New-York,  and  payment  thereof  was  then 
and  there  duly  demanded,  but  the  said  E.  F.  then  and  there  wholly 
declined  and  refused  to  pay  the  same,  Avhereof  the  defendant  had 
due  notice.  And  the  plaintiff  further  says  that  he  is  now  the  law- 
ful owner  and  holder  of  the  said  bill,  and  the  defendant  is  justly 
indebted  to  him  therefor  in  the  sum  of  five  hundred  dollars  princi- 
pal, together  with  interest  thereon  from  the  first  day  of  January, 
one  thousand  eight  hundred  and  forty-eight,  for  which  principal 
sum  and  interest,  the  plaintiff  demands  judgment. 

G.  H.,  Plff's  Att'y. 


[  No.  76.  ] 

Complaint  on  foreign  hill  of  exchavge  against  endorser  for  non- 

acceptance. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 


464  PRACTICAL   FORMS. 

to  this  court,  that  on  the  first  day  of  January,  one  thousand  eight 
hundred  and  forty-eight,  E.  F.,  at  the  city  of  Troy,  made  his  bill  of 
exchange  in  writing  and  directed  the  same  to  G.  H.  at  the  city  of 
New  York,  and  thereby  required  the  said  G.  H.  to  pay  to  J.  K.  of 
the  city  of  New-York,  the  sum  of  five  hundred  dollars,  ten  days 
after  sight  or  [at  sight,]  and  then  and  there  delivered  the  said  bill 
to  the  said  J.  K.  who  endorsed  the  same  to  the  plaintiff,  or  [to  L. 
M.  who  endorsed  the  same  to  the  plaintiff,]  and  the  said  plaintiff 
further  says  that  the  said  bill  was,  on  the  tenth  day  of  January,  one 
thousand  eight  hundred  and  forty-eight,  duly  presented  to  the  said 
G.  H.  for  acceptance,  and  that  the  said  G.  H.  then  declined  and 
refused  to  accept  the  same,  whereupon  the  said  bill  was  then  duly 
protested  for  non-acceptance  thereof,  of  all  which  the  defendant  J. 
K.  had  due  notice.  And  the  plaintiff  further  says  that  he  is  now 
the  lawful  owner  and  holder  of  the  said  bill,  and  the  defendant  is 
justly  indebted  to  him  therefor  in  the  sum  of  five  hundred  dollars 
principal,  together  with  interest  thereon  from  the  tenth  day  of  Jan- 
uary, one  thousand  eight  hundred  and  forty-eight,  for  which  princi- 
pal sum  and  interest,  the  plaintiff  demands  judgment. 

N.  O.,  Plff's  Att'y. 


[  No.  77.  ] 

Complaint  for  work  and  labor. 

[Title  of  catise  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  this  court,  that  the  above  named  defendant  is  indebted  to  him 
for  the  work,  labor  and  services,  of  the  plaintiff  and  his  servants, 
for  the  defendant  at  brick  making,  at  or  about  the  following  days 
and  times  to  wit:  from  the  tenth  day  of  August,  1848,  to  the  tenth  day 
of  August,  1849,  at  the  sum  of  twentj^-five  dollars  per  month, 
amounting  in  the  whole  to  the  sum  of  three  hundred  dollars,  for 
which  sum  the  plaintiff  demands  judgment. 

E.  F.,  Plff's  Att'y. 


PRACTICAL   FORMS.  4C5 

[  No.  78.  ] 

Complaint  for  talcing  personal  property. 

[Title  of  cause  as  in  No.  QS.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows  to 
this  court,  that  on  or  about  the  first  day  of  January,  one  thousand 
eight  hundred  and  forty-nine,  at  the  county  of  Tioga,  the  defendant 
forcibly  and  wrongfully  took  from  the  possession  of  the  plaintiff  and 
carried  away  the  following  goods  and  chattels,  that  is  to  say,  one 
grey  mare,  one  set  harness,  six  sheep,  and  five  cows,  which  goods 
and  chattels  were  of  the  value  of  two  hundred  dollars.  Wherefore 
the  plaintiff  demands  that  the  defendant  may  be  adjudged  to  pay 
the  plaintiff  damages  to  the  sum  of  two  hundred  dollars,  wiih  in- 
terest from  the  first  day  of  January,  one  thousand  eight  hundred 
and  forty-nine. 

E.  F.,Pllff's  Att'y. 


[  No.  79.  ] 

Complaint  on  attorney's  bill. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  this  court,  that  the  above  named  defendant  is  indebted  to  him  in 
the  sum  of  one  hundred  dollars  for  the  work,  labor,  and  attendance 
of  the  plaintiff,  by  him  done  and  bestowed  as  the  attorney  and 
solicitor  of  the  defendant,  and  at  his  request,  and  for  money  laid 
out  and  paid  by  the  plaintiff  for  the  defendant  at  his  request;  and 
the  plaintiff  says  that  the  items  of  his  account  are  as  follow  :  At- 
torney's costs  and  disbursements  in  an  action  in  favor  of  E.  F.,  against 
the  defendant,  on  a  promissory  note,  twenty-five  dollars;  counsel 
fee  on  trial  of  cause  in  favor  of  defendant,  against  G.  H.,  twenty- 
five  dollars;  costs  and  disbursements,  and  counsel  fee,  in  cause  of 
defendant  against  J.  K.,  fifty  dollars.  Wherefore,  the  plaintiff  de- 
mands judgment  against  the  defendant  for  the  sum  of  one  hundred 

dollars. 

L.  M.,  Pltff's  Att'y. 

30 


466  PRACTICAL   FORMS. 

[  No.  80.  ] 

Complaint  to  recover  possession  of  personal  property. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows  to 
this  court,  that  the  defendant  has  become  possessed  of,  and  wrong- 
fully detains  from  the  plaintiff  the  following  goods  and  chattels  of 
the  plaintiff  that  is  to  say,  one  bay  horse,  with  a  star  in  his  forehead, 
one  single  wagon,  with  leather  top,  painted  black,  one  set  single 
harness,  brass  mountings.  Wherefore  the  plaintiff  demands  that 
the  defendant  may  be  adjudged  to  deliver  to  the  plaintiff  the  said 
goods  and  chattels,  and  to  pay  the  plaintiff  damages  for  the  de- 
tention thereof,  to  the  sum  of  one  hundred  dollars  and  that  the 
same  may  be  forthwith  delivered  to  the  plaintiff. 

J.  K.,  Pltff's  Att'y. 


1 


[  No.  81.  ] 

Complai7it  for  detainiiig  personal  property. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  the  court,  that  the  above  named  defendant  became  possessed  of 
the  following  goods  and  chattels  of  the  plaintiff,  that  is  to  say  ;  one 
pair  of  red  cattle,  six  milch  cows,  one  heifer,  of  the  value  of  two 
hunderd  dollars,  and  being  so  possessed  thereof,  the  defendant 
on  or  about  the  first  day  of  August,  one  thousand  eight  hundred 
and  forty-nine,  converted  the  said  goods  and  chattels  to  his  own 
use ;  wherefore  the  plaintiff  demands  that  the  defendant  may  be 
adjudged  to  pay  the  plaintiff  damages  to  the  sum  of  two  hundred 
dollars,  with    interest   from  the  first  day  of  August,  one  thousand 

eight  hundred  and  forty-nine. 

J.  K.,  Pltf's  Att'y. 


[  No.  82.  ] 

Complaiyit  to  recover  possession  of  real  estate. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  this  court  that  he  has  lawful  title  as  the  owner  in  fee   simple   to 


PRACTICAL   FORMS.  467 

the  following  described  real  estate  situate  in  the  town  of  Bern,  in  the 
county  of  Albany,  (here  describe  premises,  with  sufficient  certainty 
to  enable  an  officer  to  deliver  possession  ;)  and  that  the  defendant  is 
in  possession  of  the  said  real  estate  and  unlawfully  withholds  pos- 
session of  the  same  from  the  plaintiff. 

Wherefore  the  plaintiff  demands  that  the  defendant  may  be  ad- 
judged to  surrender  the  possession  of  the  said  real  estate  to  the 
plaintiff,  and  to  pay  to  the  plaintiff  damages  for  the  unlawful  with- 
holding of  the  same,  to  the  sum  of  three  hundred  dollars. 

E.  F.,  Pltf's  Att'y. 


[  No.  83.  ] 

Complaint  for  an  account. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  this  court,  that  the  above  named  defendant  is  indebted  to  him 
in  the  sum  of  one  hundred  dollars,  together  with  interest  thereon, 
on  an  account  for  goods,  wares  and  merchandizes  sold  and  deliver- 
ed to  the  defendant,  or  (for  law  books,  law  blanks  and  other  sta- 
tionery.) 

Wherefore  the  plaintiff  demands  judgment  for  the  said  sum  of 
one  hundred  dollars,  with  interest  from  the  first  day  of  January^ 
one  thousand  eight  hundred  and  forty-eight. 

E.  F.,  Pltf's  Att'y. 


[  No.  84.  ] 
Complaint  for  goods  sold  at  different  times. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  this  court,  that  the  plaintiff  sold  and  delivered  to  the  defendant 
the  following  described  goods  and  chattels,  at  the  times  and  for  the 
prices  below  specified  as  to  each  article,  that  is  to  say :  five  yards 
of  broad  cloth  on  the  first  day  of  January,  1848,  for  the  price  of 
twenty-five  dollars;  one  horse  on  the  tenth  day  of  January,  1848, 


468  PRACTICAL     FORMS. 

for  the  price  of  one  hundred  dollars;  and  one  covered  one-horse 
wagon,  on  the  last  mentioned  day,  for  the  price  of  one  hundred  and 
fifteen  dollars ;  amounting,  in  the  whole,  to  the  sum  of  two  hun- 
dred and  forty  dollars,  upon  account  of  which  said  goods  and 
chattels  the  defendant  remains  indebted  to  the  plaintiff  in  the  sum 
of  one  hundred  dollars,  together  with  interest  thereon.  Where- 
fore, the  plaintiff  demands  judgment  for  the  said  sum  of  one 
hundred  dollars,  with  interest  from  the  tenth  day  of  January,  1848. 

E.  F.,  PltfT's  Ati'y. 


[  No.  85.] 

Complaint  for  worky  labor,  and  materials  furnished. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 

to  this  court,  that  the  above  named  defendant   is  indebted  to  him 

for  the  work,  labor,  and  services  of  the  plaintifT  and  his  servants, 

for  the  defendant  at  sundry  times,  and  also  for  materials  and  other 

necessary  things  supplied  by  the  plaintiff  in  and  about  such  work, 

labor,  and  services  for  the  defendant,  as   follows  :  The  building  of 

a  barn  by  the  plaintiff  for  the  defendant,  and  the  materials  used  in 

such  building;  and   the  plaintiff  claims   therefor  the  sum  of  one 

hundred  and  fifty  dollars,   for  which   sum   the  plaintiff  demands 

judgment. 

E.  F.,  Phff's  att'y. 


[  No.  86.  ] 

Complaint  for  goods  sold,  where  the  price  is  agreed  upon. 

[Title  of  cause  as  in  No.  65.] 

The  complaint  of  the  above  named  plaintiff  respectfully  shows 
to  this  court,  that  on  or  about  the  first  day  of  January,  one  thousand 
eio-ht  hundred  and  forty-eight,  he  sold  and  delivered  to  the  above 
named  defendant  the  following  described  goods  and  chattels,  at  the 
respective  prices  below  specified  for  each  article  of  the  same,  that 
is  to  say  :  Five  yards  of  broad  cloth,  at  the  price  of  five  dollars 
per  yard  ;  one  piece,  containing  thirty  yards,  of  satinett  cloth,  for 
ihe  price  of  six  shillings  per  yard  ;  one  barrel  of  pork,  for  the  price 


PRACTICAL   FORMS.  469 

of  twelve  dollars  ;  the  prices  of  which  said  goods  and  chattels, 
together  amounted  to  the  sum  of  fifty-nine  dollars  and  fifty  cents, 
which  the  defendant  promised  to  pay  the  plaintiff  as  follows,  to  wit, 
on  the  first  day  of  July,  one  thousand  eight  hundred  and  forty-eight ; 
yet  the  plaintiff  says  that  the  defendant  has  not  complied  with  his 
said  promise,  but,  on  the  contrary  thereof,  remains  indebted  there- 
upon in  the  sum  of  fifty-nine  dollars  and  fifty  cents,  for  which  sum, 
with  interest  from  the  first  day  of  July,  one  thousand  eight  hundred 
and  forty-eight,  the  plaintiflf  demands  judgment. 

E.  F.,  ptff's  Att'y. 


[  No.  87.  ] 
Complaint  for  the  foreclosure  of  a  mortgage.. 

Supreme  Court. — County  of  Suffolk. 

A.  B.,  plaintiff 
agH 
C.  D.,  E.  F.,  G.  H.,  and  oth's,  dfts. 

The  complaint  of  the  above  named  plaintiff  respectfully  show 
to  this  court,  that  the  defendant  C.  D.  being  indebted  to  the 
plaintiff  in  the  sum  of  five  thousand  dollars  for  the  purpose  of  se- 
curing the  payment  of  the  same,  with  interest  thereon,  on  the  first 
day  of  May,  one  thousand  eight  hundred  and  forty-eight,  executed 
and  delivered  to  the  plaintiff  his  bond,  sealed  with  his  seal,  where- 
by he  bound  himself  in  the  penalty  of  ten  thousand  dollars,  upon 
condition  that  the  same  should  be  void  if  the  said  defendant  should 
pay  to  the  plaintiff  the  said  sum  of  money  first  above  mentioned 
as  follows :  On  the  first  day  of  May,  one  thousand  eight  hundred 
and  forty-nine,  with  interest,  and  as  collateral  security  for  the  pav- 
ment  of  the  said  indebtedness,  the  said  defendant  on  the  same  day 
executed,  duly  acknowledged  and  delivered  to  the  plaintiff  a  mort- 
gage, whereby  he  granted,  bargained  and  sold  to  the  plaintiff  the 
following  described  premises  with  the  appurtenances  thereto,  that 
is  to  say,  [here  take  in  description  of  mortgaged  premises]  with  the 
same  condition  as  the  said  bond,  and  in  case  of  default  in  the  pay- 
ment of  the  said  sum  of  money  or  any  part  thereof,  the  plaintiff  was. 
empowered  to  sell  the  said  mortgaged  premises  in  due  form  of  law, 
and  out  of  the  moneys  arising  from  the  sale  to  pay  the  said  sum  of 
money  and  interest,  with  the  costs  and  expenses  of  the  proceedings, 
thereupon,  the  surplus  to  be  returned  to  the  mor'gagor. 


470  PRACTICAL   FORMS. 

And  the  plaintiff  further  shows  that  the  said  mortgage  was  duly 
recorded  in  the  office  of  the  clerk  of  the  county  of  Dutchess,  on 
the  first  day  of  May,  one  thousand  eight  hundred  and  forty-eight. 

And  the  said  plaintiff  further  shows  that  the  said  defendant 
has  failed  to  comply  with  the  condition  of  the  said  bond  and 
mortgage  by  omitting  to  pay  the  sum  of  five  thousand  dollars  which 
became  due  on  the  first  day  of  May,  one  thousand  eight  hundred 
and  forty-nine,  and  there  is  now  justly  due  to  the  plaintiff  upon 
the  said  bond  and  mortgage  the  sum  of  five  thousand  dollars  with 
interest  thereon  from  the  first  day  of  May,  one  thousand  eight  hun- 
dred and  forty-eight. 

And  the  plaintiff  further  shows  that  E.  F.  and  G.  H  have  or 
claim  to  have  some  interest  in,  or  lien  upon,  the  said  mortgaged 
premises,  or  some  part  thereof,  which  interest  or  lien,  if  any,  has 
accrued  subsequently  to  the  lien  of  the  said  mortgage. 

The  plaintiff  therefore  demands  that  the  defendants  and  all 
persons  claiming  under  them  subsequent  to  the  commencement  of 
this  suit,  may  be  barred  and  foreclosed  of  all  right,  claim,  lien  and 
equity  of  redemption  in  the  said  mortgaged  premises,  that  the  said 
premises  may  be  decreed  to  be  sold  according  to  law  ;  that  the 
moneys  arising  from  the  sale  may  be  brought  into  court ;  that  the 
plaintiff  may  be  paid  the  amount  due  on  the  said  bond  and  mort- 
gage with  interest,  to  the  time  of  such  payment,  and  the  costs  and 
expenses  of  this  suit  so  far  as  the  amount  of  such  moneys  properly 
applicable  thereto  will  pay  the  same  ;  and  that  the  defendant  C. 
D.,  may  be  adjudged  to  pay  any  deficiency  which  may  remain 
after  applying  all  of  said  moneys  so  applicable  thereto  ;  and  that 
the  plaintiff  may  have  such  other  or  further  relief,  or  both,  in  the 

premises,  as  shall  be  just  and  equitable. 

*  J.  K.,  Pllff's  Att'y. 


[  No.  S8.  ] 
Notice  of  object  of  action  where  complaint  is  not  served  in  mortgage 


cases. 


{Title  of  cause  as  in  No.  87.] 
To  John  Doe. 
Sir: 

The  object  of  the  above  action,  in  which  a  summons  is  here- 
with served  upon  you,  is  to  foreclose  a  mortgage  executed  by  C.  D., 


PRACTICAL   FORMS.  471 

of  the  town  of  Cairo,  in  the  county  of  Greene,  to  A.  B.,  or  (or  to 

E.  F.,)  on  the  tenth  day  of  June,  1848,  for  the  sum  of  one  thousand 

dollars  (and  which  was  duly  assigned  by  the  said  E.  F.  to  the  said 

A.  B.,)  with  interest  from  the  tenth  day  of  June,  1848,  upon  the 

following  described  premises  (here  insert  a  brief  description  of  the 

property  described  in  the  mortgage),  and  no  personal  claim  is  made 

against  you. 

Dated,  &c. 

G.  H.,  Plt'ff's  Att'y. 


[  No  89.  ] 

Notice  of  pendericy  of  action. 

\_Tille  of  cause  as  in  No.  87.] 

Notice  is  hereby  given,  that  an  action  has  been  commenced  in 
this  court  upon  a  complaint  of  the  above  named  plaintiff,  against  the 
above  named  defendant,  for  the  foreclosure  of  a  mortgage,  bearing 
date  the  tenth  day  of  June,  one  thousand  eight  hundred  and  forty- 
eight,  executed  by  C.  D.,  of  the  town  of  Cairo,  in  the  county  of 
Greene,  to  the  said  A.  B.,  [or  to  E.  F.,  who  duly  assigned  the  same 
to  the  said  A.  B.,]  and  recorded  in  the  office  of  the  clerk  of  the  county 
of  Greene,  on  the  tenth  day  of  June,  one  thousand  eight  hundred 
and  forty-eight,  at  three  o'clock  in  the  afternoon:  and  that  the  mort- 
gaged premises  in  the  last  mentioned  county,  affected  by  the  said 
foreclosure,  were,  at  the  time  of  the  commencement  of  this  action, 
and  at  the  time  of  filing  this  notice,  situated  in  the  town  of  Cairo, 
^  in  the  last  mentioned  county,  and  are  described  in  the  said  mortgage 
as  follows,  to  wit  :  (here  insert  description  of  property  as  contained 
in  the  mortgage.) 

Dated,  &c. 

Yours,  &:c. 

G.  H.,  Plt'ff's  Atty. 


[  No.  90.  ] 

Affidavit  on  which  to  apply  for  an  order  of  reference,  in  a  foreclosure. 

suit. 

[Title  of  cause  as  in  No.  87.] 

Albany  county.     E.  F.,  of  the  city  of  Albany,  being  duly  sworn, 
says,  that  the  summons  in  this  action  was  personally  served  on  all 


472  PRACTICAL   FORMS. 

of  the  defendants,  on  the  first  day  of  August,  1849  [as  appears  by 
the  certificate  of  G.  H.,  sheriff  of  said  county,  or  by  the  affidavit  of  J. 
K.,  hereto  annexed],  [that  L.  M.,  who  is  an  infant  defendant,  has 
put  in  a  general  answer  by  his  guardian]  [that  N.  O.  and  R.  S., 
two  of  said  defendants,  are  absentees,  and  have  not  answered  the  q 
complaint  in  this  action],  and  that  no  answer  has  been  put  into  the 
complaint  in  this  action  [or  no  answer  denying  any  material  allega- 
tion contained  m  the  said  complaint  so  as  to  require  a  reply  thereto] 
by  any  of  the  said  defendants. 

Sworn,  &c.  _ 

E.  F. 


[  No.  91.  ] 

Order  of  reference  in  foreclosure  suit,  all  due,  no  infants  or  absent 

defendavits. 

At,  &c.  (as  in  No.  92.) 

[Tide  of  cause  as  in  No  87.]. 

On  filing  proof  of  the  personal  service  of  the  summons  in  this 
action  upon  all  of  the  defendants  therein,  and  that  no  answer  to 
the  complaint  has  been  put  in  by  any  of  said  defendants,  on  motion 
of  E.  F.,  attorney  for  the  plaintiff',  it  is  ordered,  that  it  be  referred 
to  J.  K.,  of  the  village  of  Catskill,  to  compute  and  ascertain  the 
amount  due  to  the  plaintiff'  for  principal  and  interest  on  the  bond 
and  mortgage  set  forth  in  said  complaint,  and  report  the  same  lo 
this  court.  |^ 


[  No.  92.  ] 

Order  of  referencein  a  foreclosure  suit,  all  due,  and  absent  defendants. 

At  a  special  term  of  the  Supreme  Court,  held  for  the  State  of  New- 
York,  in  the  [third]  judicial  district,  at  '.he  city  of  Albany,  on  the 
first  Monday  of  September,  one  thousand  eight  hundred  and 
forty-nine. 

Present — Amasa  J.  Parker,  Justice. 

[Title  of  cause  as  in  No.  87.] 

It  appearing  that  the  summons  in  this  action  has  been  personally 
served  upon  the  defendant,  C.  D.,  and  that  the  same  has  been 


PRACTICAL   FORMS.  473 

served  on  the  defendant  E.  F.,  who  is  a  non-resident  of  this  State, 
(or  who  cannot  be  found  therein,)  by  the  publication  thereof  as 
required  by  law  and  the  order  of  this  court,  and  no  answer  to  the 
complaint  in  this  action  having  been  put  in  by  any  of  said  defend- 
ants;  and  the  period  for  said  defendants  to  answer  having  expired, 
on  filing  proof  of  such  service,  and  that  no  answer  has  been  put 
in,  on  motion  of  J.  K.,  attorney  for  the  plaintiff,  it  is  ordered,  that 
it  be  referred  to  L.  M.,  residing  in  the  city  of  Troy,  to  compute  and 
ascertain  the  amount  due  to  the  plaintiff  on  the  bond  and  mortgage 
mentioned  in  the  complaint  in  this  action,  and  to  examine  the  plain- 
tiff on  oath,  as  to  any  payments  that  may  have  been  made  to  him, 
or  to  any  person  for  his  use  on  account  of  the  demand  mentioned 
in  said  complaint,  and  which  ought  to  be  credited  thereon  ;  and  to 
take  proof  of  the  facts  and  circumstances  stated  in  said  complaint, 
and  to  report  the  amount  due,  and  also  such  proofs  and  examina- 
tions to  this  court  with  all  convenient  speed. 


[  No.  93.  ] 

Order  of  reference  in  a  foreclosure  suit,  all  due,  infant  defendants, 

but  no  absentees. 

At,  &c.,  (as  in  No.  92.) 

[Title  of  cause  as  in  No.  87.] 

.  On  filing  proof  of  the  personal  service  of  the  summons  in  this 
action,  upon  all  the  adult  defendants,  and  that  no  answer  to  the 
complaint  has  been  put  in  by  any  of  such  defendants,  and  th'fe  infant 
defendants  having  put  in  a  general  answer,  by  their  guardian,  on 
motion  of  J.  K.,  plaintiff's  attorney,  it  is  ordered  that  it  be  referred 
to  E.  F.,  of  the  city  of  Utica,  to  take  proof  of  the  material  facts 
stated  in  the  said  complaint,  and  report  the  same  to  this  court ;  and 
also  to  compute  and  ascertain  the  amount  due  to  the  plaintiff  for 
principal  and  interest  on  the  bond  and  mortgage  set  forth  in  said 
complaint,  and  report  the  same  to  this  court. 


474  PRACTICAL   FORMS. 

[  No.  94.  ] 

Order  of  reference  inforedvsure  suit,  part  not  due. 

At,  &c.,  (as  in  No.  92.) 

[Title  of  cause  as  in  No.  87.] 

(Like  in  all  respects  the  usual  order  in  cases  where  all  is  due, 

then  add,) 

And  it  appearing  by  the  complaint  that  the  action  was  brought 
to  procure  the  foreclosure  of  a  mortgage  and  a  sale  of  the  mort- 
gaged premises,  therein  described,  and  that  a  part  of  the  debt 
secured  by  the  said  mortgage,  and  the  bond  accompanying  the 
same,  is  not  yet  due  ;  it  is  farther  ordered,  that  the  said  referee 
ascertain  and  report  the  amount  actually  due  to  the  plaintiff  for 
principal  and  interest  on  said  bond  and  mortgage,  and  also  the 
amount  secured  to  be  paid  thereby,  and  which  remains  unpaid,  in- 
cluding interest  thereon  to  the  date  of  his  report ;  and  also  to 
ascertain  and  report  the  situation  of  the  mortgaged  premises,  and 
whether  in  his  opinion  the  same  can  be  sold  in  parcels  without 
injury  to  the  interests  of  the  parties  ;  and  if  he  shall  be  of  opinion 
that  a  pale  of  said  premises,  in  one  parcel,  will  be  most  beneficial 
to  the  parties,  then  that  he  report  his  reasons  for  such  opinion. 


1 


i 


[  No.  95-  3 

Affidavit  of  filing  notice  of  pendency  of  suit,  in  action  for  foreclosure^ 

of  a  mortgage. 
m 
[Title  of  suit  as  in  No.  87.] 

Saratoga  county. — E.  F.  of,  &c.,  being  sworn  says,  that  he  is 
[the  clerk  of,  or  law  partner  of,]  the  attorney  for  the  plaintiff  in  the 
above  entitled  action  ;  that  this  action  was  commenced  for  the  fore- 
closure and  satisfaction  of  a  mortgage ;  and  that  none  of  the  de- 
fendants are  infants  or  absentees,  [or  that  E.  F.  one  of  said  defend- 
ants is  an  absentee,  or  that  G.  H.  who  is  an  infant  defendant  has 
put  in  a  general  answer  by  his  guardian,]  and  that  none  of  said 
defendants  have  answered  the  complaint  in  this  cause  [except  the 
said  infant  defendant,] 

And  this  deponent  further  says,  that  on  the  first  day  of  July,  one 


PRACTICAL    FORMS.  475 

thousand  eight  hundred  and  forty-nine,  a  notice  of  the  pendency  of 
this  suit,  in  the  form  prescribed  by  section  132  of  the  Code  of  Pro- 
cedure, as  amended  by  act  of  April  11,  1819,  and  containing,  as 
this  defendant  believes,  correctly  and  truly  all  the  particulars  re- 
quired to  be  stated  in  such  notice,  by  said  act,  was  filed  in  the 
office  of  the  clerk  of  the  count}'^  of  Saratoga,  that  being  the  county 
where  the  said  mortgaged  premises  are  situated. 

Sworn,  (Sec. 

E.  F. 


[  No.  96.  ] 

Judgment  of  foreclosure  and  sale. 

[Title  of  cmise  as  i7i  No.  87.] 

On  reading  and  filing  the  [certificate  of  the  sherifl!*  of  Delaware 
county,]    [or  affidavit  of  George  Jones,    attorney  for  the  plaintiff,] 
proving  the  service  of  the  summons  and  complaint  in  this  action  ; 
that  no  answer  has  been  put  in  ;  and  that  due  notice  of  the  penden- 
cy of   the  action  was   duly  filed    in  the  office   of   the  clerk  of   the 
county  of  Delaware,   on  the  first  day  of  June,   one  thousand  eight 
hundred   and   forty-nine,    and  an  order   of  reference  having   been 
made  to  compute  the  amount  due  to  the  plaintiff  upon  the  bond  and 
mortgage  set  forth  in  the  complaint;  and  on  reading  and  filing  the 
report   of   the  referee  named   in  the  order  of   reference,  by  which 
report,  bearing  date  the  tenth  day  of  August,  1849,  it  appears  that 
five  thousand  eight  hundred  and  seventy-five  dollars  and  sixty-four 
cents  was  due  thereon  at  the  date  of  said  report ;  and  on  motion  of 
George   Jones,   attorney  for    the  plaintiff,    it  is  adjudged  that    the 
mortgaged  premises   described  in  the  complaint   in  this  action,  as 
hereinafter  set  forth ;  or  so  much  thereof  as  may  be  necessary,  and 
as  may  be  sold  separately  without  prejudice  to  the  interest  of  the 
owner  thereof,  be  sold  at  public  auction,  in  the  county  of  Delaware, 
by  the  sheriff  [or  referee]  of  said  county  j  that  the  said  sheriff  [or 
referee]  give  public  notice  of  the  time  and  place  of  such  sale  ac- 
cording to  law,  and  the  practice  of  this  court;  that  either  or  any  of 
the  parlies   to  this   action  may  purchase  at  such  sale  ;  that  the  said 
sheriff  [or  referee]  execute  to  the  purchaser  or  purchasers,  a  deed 
or  deeds  of  the  premises  sold  ;  that  out  of  the  moneys  arising  from 
such  sale,  after  deducting  the  amount  of  his  fees  and  expenses  on 


476  PRACTICAL    FORMS. 

such  sale,  and  any  lien  or  liens  upon  said  premises  so  sold,  at  the 
time  of  such  sale,  for  taxes  or  assessments,  the  said  sheriff  [or  re- 
feree] pay  to  the  plaintiff  or  his  attorney  the  sum  of  sixty  dollars 
and  seventy-five  cents,  adj  udged  to  the  plaintiff  for  costs  and  charges 
in  this  action,  with  interest  from  the  date  hereof,  and  also  the 
amount  so  reported  due  as  aforesaid,  together  with  the  legal  inte- 
rest thereon,  from  the  date  of  the  said  report,  or  so  much  thereof 
as  the  purchase  money  of  the  mortgaged  premises  will  pay  of  the 
same,  and  take  a  receipt  therefor,  and  file  it  with  his  report  of  sale; 
that  he  deposit  the  surplus  money  (if  any,)  in  [a  bank  to  be  named,] 
to  the  credit  of  the  clerk  of  this  court,  to  be  drawn  only  on  the 
order  of  the  court,  signed  by  said  clerk  and  a  judge  of  the  court; 
that  he  make  a  report  of  such  sale  and  file  it  with  the  clerk  of  this 
court  with  all  convenient  speed  ;  that  if  the  proceeds  of  such  sale 
be  insufficient  to  pay  the  amount  so  reported  due  to  the  plaintiff, 
with  the  interest  and  costs  as  aforesaid,  the  said  sheriff  [or  referee] 
specify  the  amount  of  such  deficiency  in  his  report  of  sale,  and  that 
the  defendant  C.  D.  pay  the  same  to  the  plaintiff,  and  that  the  pur- 
chaser or  purchasers  at  such  sale  be  let  into  possession  on  produc- 
tion of  the  sheriff's  [or  referee's]  deed,  and  a  certified  copy  of  the 
order  confirming  the  report  of  sale. 

And  it  is  further  adjudged,  that  the  defendants  and  all  persons 
claiming  under  them ,  or  any  or  either  of  them,  after  the  filing  of  such 
notice  of  pendency  of  this  action,  be  forever  barred  and  foreclosed 
of  all  right,  title,  interest  and  equity  of  redemption  in  the  said 
mortgaged  premises  so  sold,  or  any  part  thereof. 

The  following  is  a  description  of  the  mortgaged  premises  herein- 
before mentioned  [here  insert  description.] 


[  No.  97.  ] 

Judgment  of  foreclosure  and  sale,  part  only  due^  premises  can  be  sold 

in  parcels. 

[Title  of  cause  as  in  No.  87.] 

On  reading  and  filing  the  certificate  of  J.  K.,  sheriff  of  the  county 
of  Greene,  [or  affidavit  of  L.  M.,  attorney  for  the  plaintiff]  proving 
the  services  of  the  summons  and  complaint  in  this  action;  that  no 
answer  has  been  put  in  ;  and  that  due  notice  of  the  pendency  of  the 


PRACTICAL  FORMS.  477 

action  was  duly  filed  in  the  office  of  the  clerk  of  the  county  of 
Greene,  on  the  first  day  of  July  one  thousand  eight  hundred  and 
forty-nine,  and  an  order  of  reference  having  been  made  to  compute 
the  amount  actually  due  to  the  plaintiff  upon  the  bond  and  mort- 
gage set  forth  in  the  complaint ;  and  also  the  amount  secured  by 
and  unpaid  upon  said  bond  and  mortgage  wi'h  interest  thereon  to  the 
date  of  such  report,  and  also  to  ascertain  the  situation  of  the  mort- 
gaged premises,  and  whether  the  same  can  be  sold  in  pai'cels  with- 
out injury  to  the  interests  of  the  parties,  then  that  he  report  his  rea- 
son for  such  opinion  ;  and  on  reading  and  filing  the  report  of  the 
referee  named  in  the  order  of  reference,  bearing  date  the  first  day 
of  August  1849,  by  which  it  appears  that  there  was  actually  due  to 
the  said  plaintiff,  at  the  date  of  the  said  report,  for  principal  and 
interest,  the  sum  of  two  hundred  and  forty  dollars,  and  fifteen  cents, 
and  that  the  amount  secured  by,  and  unpaid  upon  said  bond  and 
mortgage  with  interest  thereon  to  the  date  of  said  report,  is  the  sum 
of  three  thousand  and  forty  dollars,  and  that  said  premises  can  be 
sold  in  parcels  without  injury  to  the  interests  of  the  parties.  And 
on  motion  of  J.  K.,  attorney  for  the  plaintiff,  it  is  adjudged  that  so 
much  of  the  mortgaged  premises  described  in  the  complaint  in  this 
action,  as  may  be  necessary  to  raise  the  amount  so  reported  actual- 
ly due  to  the  plaintiff,  and  the  costs  of  this  case,  and  which  may  be 
sold  separately  without  prejudice  to  the  interest  of  the  owners  there- 
of, be  sold  at  public  auction  in  the  county  of  Greene,  by  the  sheriff 
of  said  county,  [or  by  A.  B.,  a  referee,  who  is  hereby  appointed  for 
such  purpose]  ;  that  the  said  sheriff  [or  referee]  give  public  notice  of 
the  time  and  place  of  such  sale  according  to  law,  and  the  practice  of 
this  court;  that  either  or  any  of  the  parties  to  this  action  may  pur- 
chase at  such  sale;  that  the  said  sheriff  execute  to  the  purchaser  or 
purchasers,  a  deed  or  deeds  of  the  premises  sold  ;  that  out  of  the 
moneys  arising  from  such  sale,  after  deducting  the  amount  of  his 
fees  and  expenses  on  such  sale,  and  any  lien  or  liens  upon  said  pre- 
mises so  sold,  at  the  time  of  such  sale,  for  taxes  or  assessments,  the 
said  sheriff  pay  to  the  plaintiff  or  his  attorney,  the  sum  af  fifty-five 
dollars  snd  ten  cents  adjudged  to  the  plaintiff  for  costs  and  charges 
in  this  action  with  interest  from  the  date  hereof,  and  also  the  amount 
so  reported  as  actually  due  as  aforesaid,  together  with  the  legal  in- 
terest thereon,  from  the  date  of  the  said  report,  or  so  much  thereof 
as  the  purchase  money  of  the  mortgaged  premises  will  pay  of  the 
same,    take    a  receipt   therefor,  and  file  it  with  his  report  of  sale ; 


478  PRACTIAL  FORMS. 

that  he  deposite  the  surplus  money  ([[  any),  in  [a  bank  to  he  named] 
to  the  credit  of  the  clerk  of  this  court,  to  be  drawn  only  on  the  or- 
der of  the  court,  signed  by  said  clerk  and  a  judge  of  the  court ;  that 
he  make  a  report  of  such  sale  and  file  it  with  the  clerk  of  this  court 
with  all  convenient  speed;  that  if  the  proceeds  of  such  sale  be  in- 
sufficient to  pay  the  amount  so  reported  as  actually  due  to  the  plain- 
tiff with  the  interest  and  costs  as  aforesaid,  the  said  sheriff  specify 
the  amount  of  such  deficiency  in  his  report  of  sale,  and  that  the  de- 
fendant C.  D.  pay  the  same  to  the  plaintiff  and  that  the  purchaser 
or  purchasers  at  such  sale,  be  let  into  possession  on  production  of 
the  sheriff's  deed,  and  a  certified  copy  of  the  order  confirming  the 
report  of  sale. 

And  it  is  further  adjudged,  that  the  defendant  and  all  persons 
claiming  under  them,  or  any  or  either  of  them,  after  the  filing  of 
such  notice  of  pendency  of  this  action,  be  forever  barred  and  fore- 
closed of  all  right,  title,  interest  and  equity  of  redemption  in  the 
said  mortgaged  premises  so  sold,  or  any  part  thereof. 

The  following  is  a  description  of  the  mortgaged  premises  herein- 
before mentioned:   [here  insert  description.] 


[  No.  9S.  ] 
Decision,  cause  tried  by  the  court. 

[Title  of  cause.] 

A  trial  by  jury  in  this  action  having  been  waived  by  the  parties, 

by  the  written  consent  of  the  attorneys  for  the  respective  parties, 

filed  with   the  clerk  of  this  court,  (or  by  the  oral  consent  of  the 

attorneys  for  the  respective  parties,  in  open  court,  and  entered   m 

the  minutes  of  the  court,  or  by  the  defendant's  failing  to  appear,) 

and  the  testimony  having  been   taken  and   duly  considered,   the 

court  do  decide  that  the  plaintiff  recover   from  the   defendant  the 

sum  of  one  hundred  dollars,  besides  costs. 

Dated,  &c. 

A.  B.,  justice. 


PRACTICAL    FORMS.  '  479 

[  No.  99.  ] 

Judgment  on  trial  of  issue  of  fact. 

[Title  of  cause.l 

April  10,  1849. 

This  cause  having  been  tried  on  the  issue  of  fact,  and  the  jury 
therein  having  found  a  verdict  for  the  plaintiff  for  the  sum  of  one 
hundred  dollars;  now,  on  motion  of  E.  F.,  attorney  for  the  plain- 
tiff, it  is  adjudged  by  the  said  court  that  the  plaintiff  recover  of  the 
defendant  the  said  sum,  with  forty-nine  dollars  and  forty-five  cents 
costs  and  disbursements,    making   the  sum   of  one  hundred   and 

forty-nine  dollars  and  forty-fi/e  cents. 

G.H.,  clerk. 


[  No.  100.  ] 

Extra  allowance  of  costs. 

[Title  of  cause.'] 

The  plaintiff  in  this  action  having  recovered  the  sum  of  five 
hundred  dollars,  and  the  same  being  a  difficult  (or  "  extraordinary") 
case,  (or,  the  defence  having  been  unreasonably  [or,  unfairly]  con- 
ducted,) the  plaintiff  is  allowed  ten  per  cent  on  the  amount  of  such 
recovery  by  way  of  costs. 

Justice  Sup.  C't. 


[  No.  101.  ] 

Judgment  on  verdict  of  a  jury. 

[Title  of  cause,'] 

The  verdict  of  the  jury  in  this  cause  having  been  entered, 
whereby  they  find  for  the  plaintiff,  and  assess  his  damages  at  one 
thousand  dollars  ;  on  motion  *  of  E.  G.,  plaintiff's  attorney,  it  is  ad- 
judged that  the  plaintiff  recover  of  the  defendant  the  said  sum, 
with  fifty-five  dollars  and  ten  cents  costs  and  disbursements, 
amounting  in  the  whole  to  one  thousand  and  fifty-five  dollars  and 

ten  cents. 

A.  N., 

Clerk  of  Columbia  county. 


480  PRACTICAL    FORMS. 

[  No.    102.   ] 

Judgment  on  decision  of  the  court,  jury  trial  waived. 

{Title  of  cause.'\ 

A  jury  trial  having  been  waived  in  this  cause,  and  the  decision 
of  the  judge  having  been  filed,  whereby  he  finds  for  the  plaintiflf 
for  five  hundred  dollars  damages ;  on  motion  (as  in  last  form,  from*.) 


[  No.  103.  ] 

Judgment  on  report  of  referees. 
[Title  of  cause."] 

This  cause  having  been  duly  referred  to  A.  B.,  C.  D.,  and  E.  F., 
to  hear  and  determine  the  same,  and  their  report  having  been  filed, 
whereby  they  find  to  be  due  from  the  defendant  to  the  plaintiff  the 
sum  of  one  hundred  dollars;  on  motion  (same  as  in  No.  101,  from 
the  *.) 


[  No.  104.  ] 

Judgment  of  affirmance  in  Supreme  Court,  upon  an  appeal  fom  a 
judgment  of  an  inferior  court. 

{Title  of  cause.] 

This  cause  having  been  brought  into  this  court  upon  an  ap- 
peal from  a  judgment  entered  in  the  county  court  of  Delaware 
county,  [or  mayor's  court  of  the  city  of  Syracuse,]  on  the  first  day 
of  May,  1849,  in  favor  of  the  above  named  plaintiff  against  the 
above  named  defendant  for  seventy-eight  dollars  damages  and 
costs ;  and  the  said  appeal  having  been  heard,  and  the  decision  of 
the  court  thereupon  having  been  filed,  whereby  the  aforesaid  judg- 
ment is  in  all  things  *  affirmed,  on  motit)n  of  H.  J.,  attorney  for  the 
plaintiff,  it  is  adjudged  that  the  said  judgment  be  and  the  same  is 
hereby  in  all  things  affirmed,  and  that  the  plaintiff  recover  of  the 
defendant  the  said  sum  of  seventy-eight  dollars,  with  fifty-four  dol- 
lars costs,  disbursements  and  interest,  amounting  in  the  whole  to 
one  hundred  and  thirty-two  dollars. 

Dated,  &c.  P.  S.,  Clerk  of 

Erie  county. 


PRACTICAL   FORMS.  481 

[  No.  105.  ] 

Like  on  reversal. 

[Same  as  above  to  the  *,  then  add]  reversed.  On  motion  of 
A.  C,  defendant's  attorney,  it  is  adjudged  that  the  said  judgment 
be  and  the  same  hereby  is  in  all  things  reversed,  and  that  the  said 
defendant  recover  of  the  plaintiff  the  sum  of  sixty-five  dollars  for 
his  costs  and  disbursements,  upon  said  appeal. 

P.  S.,  Clerk,  &c. 


[  No.  106.  ] 

Judgment  in  the  Suprefne  Court  upon  bill  of  exceptions  and  appeal 
from  a  judgment  of  a  single  judge,  and  neio  trial  denied. 

yritle  of  causeJ] 

The  judgment  in  this  cause,  entered  under  the  direction  of  a 
single  judge,  on  the  ninth  day  of  August,  1849,  in  favor  of  the 
plaintiff  and  against  the  defendant,  for  nine  hundred  and  seven- 
teen dollars  damages,  with  sixty-three  dollars  and  fifteen  cents 
costs  and  disbursements,  having  been  appealed  to  the  general  term 
of  the  Supreme  Court ;  and  the  same  having  been  heard,  and  the 
decision  of  the  court  thereupon  having  been  filed,  whereby  a  new 
trial  in  said  cause  is  denied  ;  on  motion  of  J.  N.,  plaintiff's  [or  de- 
fendant's] attorney,  it  is  adjudged  that  the  plaintiff  [or  defendant] 
recover  of  the  defendant  [or  plaintiff]  the  sum  of 'eighty-five  dol- 
lars and  ten  cents  for  his  costs  and  disbursements  upon  the  said 
appeal. 

Dated,  &c. 

R.  0.,  Clerk,  &c. 


[  No.   107.  ] 

Judgment  in  Supreme  Court,  upon  case  made  to  set  aside  report  of 
referees,  and  appeal  from  the  judgment  entered  upon  such  report, 
and  report  not  set  aside. 

[Title  of  cause.] 

The  judgment  in  this  cause,  entered  upon  the  report  of  refer- 
ees, on  the  tenth  day  of  July,  1819,    in  favor  of  the  plaintiff  and 

31 


482  PRACTICAL    FORMS. 

against  the  defendant,  for  seven  hiui:^red  and  five  dollars  and  fifty- 
four  cents  damages,  with  forty-eight  dollars  and  sixteen  cents 
costs,  having  been  appealed  to  the  general  term  of  the  Supreme 
Court ;  and  the  same  having  been  heard,  and  the  decision  of  the 
court  thereupon  having  been  filed,  whereby  the  said  judgment  is 
in  all  things  affirmed ;  on  motion  of  A.  B.,  attorney  for  plaintiff,  it 
is  adjudged  that  the  said  plaintiff  recover  of  the  defendant,  the  sum 
of  seventy-four  dollars  and  twenty-two  cents  for  his  costs  and  dis- 
bursements upon  the  said  appeal. 
Dated,  &c., 

J.  R.,  Clerk,  &c. 


[  No.  103. 

Judgment,  or  failure  to  answer. 

[Title  of  cause.] 

The  summons,  with  a  copy  of  the  complaint  in  this  action,  hav- 
ing been  duly  served  on  the  defendant,  on  the  first  day  of  July,  1849, 
and  no  copy  of  an  answer  to  the  complaint  having  been  served  on 
the  plaintiff's  attorney,  as  required  by  the  summons.  Now  on  mo- 
tion of  E.  F.,  plaintiff's  attorney,  it  is  hereby  adjudged  that  the 
plaintiff  recover  of  the  defendant  the  sum  of  five  hundred  dollars, 
the  amount  claimed  and  interest,  with  ten  dollars  costs  and  disburse- 
ments, amounting  in  the  whole  to  $5'J4.41. 

Statement  for  Judgment  and  Costs. 

Amount  claimed  in  summons $500  00 

Interest 25  00 


$525  00 


Costs  by  statute $7 

Clerk's  entering  judgment 0  50 

Affidavits 0  25 

Transcripts 0  06 

Postage 0   10 

Sheriff's  fees 150                9  41 

$534  41 


PRACTICAL  FORMS.  483 

County  of  Herkimer.  E.  F.,  plaintiff's  attorney,  in  the  above 
action,  being  duly  sworn,  says  that  the  disbursements  above  men- 
tioned have  been  made  in  this  action. 

Sworn,  &c.  „   „ 

E.  F. 


[  No.  109.  ] 
Statement  and  confession  of  judgment  without  action. 

[Title  of  cause.] 

Judgment  is  hereby  confessed  in  this  cause  for  the  sum  of  one 

hundred  dollars.     This  confession  is  for  a  debt  justly  (to  become) 

due  to  the  plaintiff,  arising  upon  the  following  facts  :  (a  promissory 

note  payable  to  the  plaintiff  for  the  sum  of  fifty-dollars,  dated  June 

5th,  1849,  and  payable  six  months  from  date,  with  interest),  or  (a 

liability  incurred  by  the  plaintiff,  by  endorsing  my  note,  payable  to 

the  order  of  E.  F.,  for  the  sum  of  one  hundred  dollars,  dated  June 

5th,  1849,  and  payable  six  months  from  date  with  interest). 

County  of  Erie.     C.  D.,  the  defendant  above  named,  being  duly 

sworn,  says,  that  the  facts  stated  in  the  above  confession  are  true  ; 

and  further  he  says  not. 

Sworn,  &:c. 

CD. 


[  No.  110.] 

Judgment  for  plaintiff  in  an  action  to  recover  real  property. 

[Title  of  cause..] 

The  verdict  of  the  jury  in  this  cause  having  been  entered, 
whereby  they  find  in  favor  of  the  plaintiff,  and  assess  his  damages 
for  withholding  the  possession  of  the  premises,  at  five  hundred  dol- 
lars, on  motion  of  E.  F.,  plaintiff's  attorney,  it  is  adjudged  that  the 
plaintiff  recover  the  possession  of  the  real  property  described  in  the 
complaint,  and, also  the  sum  of  five  hundred  and  eighty-four  dollars, 

damages,  costs,  and  disbursements. 

A.  K.,  Clerk,  &c. 


:^- 


484  PRACTICAL   FORMS. 

[  No.  111.  ] 
The  like  on  verdict  for  defendant. 

{Title  of  cause.'] 

The  verdict  of  the  jury  in  this  cause  having  been  entered, 
whereby  they  find  in  favor  of  the  defendant,  on  motion  of  E.  F., 
defendant's  attorney,  it  is  adjudged  that  the  defendant  recover  of 
the  plaintifTthe  sum  of  sixty-four  dollars  and  twenty-one  cents,  costs 
and  disbursements. 

A.  R.,  Clerk,  &c. 


[  No.  112.  ] 

Judgment  for  plaintiff  in  an  action  to  recover  personal  property  with 

damages  for  withholding. 

[Title  of  cause.] 

The  verdict  of  the  jury  in  this  cause,  having  been  entered,  where- 
by they  find  in  favor  of  the  plaintiff,  and  assess  his  damages  for 
withholding  the  possession  of  the  property,  at  twenty-five  dollars,* 
on  motion  of  E.  G.  plaintiff's  attorney,  it  is  adjudged  that  the 
plaintiff  recover  the  possession  of  the  personal  property  described 
in  the  complaint,  and  also  the  sum  of  one  hundred  and  five  dollars* 
damages,  costs,  and  disbursements. 

E.  K.,  Clerk,  &c. 


[  No.  113.  ] 

The  like  where  the  property  has  not  been  delivered. 

[The  same  as  in  No.  112  to  the  *,  then  add]  and  also  the  value 
thereof  at  seventy-six  dollars,  on  motion  of  R.  S.,  plaintiff's  attor- 
ney, it  is  adjudged  that  the  plaintiff  recover  the  possession  of  the 
personal  property  described  in  the  complaint,  or  in  case  a  delivery 
thereof  cannot  be  had,  that  the  plaintiff  recover  of  the  defendant 
the  said  sum  of  seventy-six  dollars,  and  also  the  sum  of  ninety- 
one  dollars,  damages  costs  and  disbursements. 

J.  N.,  Clerk,  &c. 


PRACTICAL    FORMS.  485 

[  No.  114.  ] 

The  like  on  verdict  for  defendant,  property  not  having  been  delivered. 

[Title  of  cause.] 

The  verdict  of  the  jury  in  this  cause  having  been  entered,  whereby 
they  find  in  favor  of  the  defendant,  *  on  motion  of  R.  S.,  defend- 
ant's attorney,  it  is  adjudged  that  the  defendant  recover  of  the 
plaintiff  the  sum  of  forty-nine  dollars  and  twenty-one  cents,  costs 

and  disbursements. 

J.  N.,  Clerk,  &c. 


[  No.  115.  ] 

The  like  where  property  has  been  delivered  to  plaintiff,  and  damages. 

[The  same  as  in  No.  \\^tothe*,then  add]^ndLa.sses%  his  damages 
for  taking  and  withholding  the  possession  of  the  property,  at  ten 
dollars,  and  the  value  thereof  at  one  hundred  and  seventy-four 
dollars,*  on  motion  of  J.  N.,  defendant's  attorney,  it  is  adjudged 
that  the  defendant  have  a  return  to  him  of  the  personal  property 
described  in  the  complaint,  or  in  case  a  return  thereof  cannot  be 
had,  that  the  defendant  recover  of  the  plaintiff  the  said  sum  of 
one  hundred  and  seventy-four  dollars,  and  also  sixty-three  dollars 
and  nineteen  cents,  damages,  costs  and  disbursements. 

R.  S.,  Clerk,  &c. 


[  No.   116.  ] 

The  like,  where  property  has  been  delivered  to  the  plaintiff  a?id  the 

defendant  waives  a  return. 

[The  same  as  in  No.  1 14  to  *,  then  add]  and  a  return  of  the  pro- 
perty having  been  waived  by  the  defendant,  on  motion  of  E.  F., 
defendant's  attorney,  it  is  adjudged,  that  the  defendant  recover  of 
the  plaintiff  the  said  sum  of  one  hundred  and  seventy-four  dollars, 
and  also  the  sum  of  fifty-six  dollars  and  forty-two  cents,  damages, 
costs  and  disbursements,  amounting  together  to  the  sum  of  two- 
hundred  and  thirty  dollars  and  forty-two  cents. 

J.  N.,  Clerk,  &c. 


486  PRACTICAL   FORMS 

[  No.  117.  ] 

Entry  in  Supreme  Court  of  remittitur  from  the  Court  of  Appeals 
on  affirmance  of  a  judgment. 

[Title  of  cause.] 

This  cause  having  been  brought  into  the  Court  of  Appeals,  upon 
an  appeal  from  the  judgment  entered  therein,  in  the  Supreme  Court, 
on  the  ninth  day  of  August,  1849,  in  favor  of  the  plaintiff  against 
the  defendant,  for  one  thousand  dollars  damages  and  ninety-five 
dollars  costs ;  and  the  said  appeal  having  been  heard,  and  by  the 
said  Court  of  Appeals  duly  considered,  it  vi^as  by  the  said  court  ad- 
judged that  the  judgment  aforesaid,  be  in  all  things*  affirmed.  And 
it  was  further  adjudged  by  the  said  court,  that  the  said  plaintiff 
should  recover  from  the  said  defendant,  the  sum  of  one  hundred 
and  ten  dollars  for  his  costs,  (damages)  and  disbursements  upon 
such  appeal.  ^ 

And  thereupon  the  judgment  roll  and  proceedings  thereupon  in 
the  said  Court  of  Appeals,  were  by  the  said  court,  remitted  into  the 
said  Supreme  Court,  according  to  the  statute  in  such  case  made  and 
provided. 


Dated,  &c. 


J.  L.  Clerk  of  Broome  county. 


[  No.  118.  ] 
The  like  upon  reversal  of  judgment. 

[Same  as  No.  117,  down  to  the*,  then  add,]  reversed.  And  it 
was  further  adjudged  by  the  said  court,  that  the  said  defendant 
should  recover  from  the  said  plaintiff,  the  sum  of  ninety-five  dol- 
lars for  his  costs  (damages)   and  disbursements,  upon  such-  appeal. 

And  thereupon,  the  judgment  roll  and  proceedings  thereupon,  in 

the  said  Court  of  Appeals,  were  by  the  said  court  remitted  into  the 

said  Supreme  Court,  according  to  the  statute  in  such  case  made  and 

provided. 

Dated,  &c. 

R.  S.  Clerk  of  Essex  county. 


PRACTICAL   FORMS.  4S7 

[  No.   119.  ] 
Exeaction  against  the  person. 

The  -^eople  of  the   State  of  New-York:  To  the  sherifl'  of  the 
county  of  Schoharie,  greeting  : 

Whereas  judgment  was  rendered  on  the  tenth  day  of  June,  one 
thousand  eight  hundred  and  forty-nine,  in  an  action  in  the  Supreme 
Court,  between  A.  B.,  plaintiff,  and  C.  D.,  defendant,  in  favor  of 
the  said  A.  B.,  against  the  said  C.  D.,  for  the  sum  of  one  hundred 
and  sixty  dollars,  as  appears  to  us  by  the  judgment  roll,  filed  in  the 
office  of  the  clerk  of  the  county  of  Schoharie  :  And  whereas  the 
said  judgment  was  docketed  in  your  county  on  the  said  tenth  day 
of  June,  in  the  year  one  thousand  eight  hundred  and  forty-nine, 
and  the  sum  of  one  hundred  and  sixty  dollars  is  now  actually  due 
thereon :  and  whereas  an  execution  against  the  property  of  the 
judgment  debtor  has  been  duly  issued  to  the  sheriff  of  the  proper 
county  and  returned  unsatisfied  :  Therefore  we  command  you,  that 
you  arrest  the  said  judgment  debtor  and  commit  him  to  the  jail  of 
your  county  until  he  shall  pay  the  said  judgment,  or  be  discharged 
according  to  law. 

Witness,  Mai  bone  Watson,  one  of  our  justices,  at  the  court  house 

in  the  town  of  Schoharie,  the  tenth  day  of  July,  one  thousand  eight 

hundred  and  forty-nine. 

£.  F.,  PItff's  Att'y. 


•[  No,  120.  ] 
Execution  against  the  property. 

The  People  of  the  State  of  New-York :  To  the  sheriff  of  the 
county  of  Greene,  greeting: 

Whereas  judgment  was  rendered  on  the  second  day  of  July,  one 
thousand  eight  hundred  and  forty-nine,  in  an  action  in  the  Supreme 
Court,  between  A.  B.,  plaintiff,  and  C.  D.,  defendant,  in  favor  of 
the  said  A.  B.,  against  ihe  said  C.  D.,  for  the  sum  of  five  hundred 
and  thirty-one  dollars  and  sixty  cents,  as  appears  to  us  by  the  judg- 
ment roll,  filed  in  the  office  of  the  clerk  of  the  county  of  Albany: 
And  whereas  the  said  judgment  was  docketed  in  your  county  on 
the  third  day  of  July,  in  the  year  one  thousand  eight  hundred  and 
forty-nine,  and  the  sum  of  five  hundred  and  thirty-one  dollars  and 


488  PRACTICAL   FORMS. 

sixty  cents  is  now  actually  due  thereon :  Therefore  we  command  you, 
that  you  satisfy  the  said  j  udgment  out  of  the  personal  property  of  the 
said  judgment  debtor  within  your  county;  or  if  sufficient  personal 
properly  cannot  be  found,  then  out  of  the  real  property  in  your 
county  belonging  to  such  judgment  debtor  on  the  day  when  the  said 
judgment  was  so  docketted  in  your  county,  or  at  any  time  thereaf- 
ter, in  whose  hands  soever  the  same  may  be  and  return  this  execu- 
(fon  within  sixty  days  after  its  receipt  by  you,  to  the  clerk  of  the 
county  of  Greene. 

Witness,  Ira  Harris,  one  of  our  Justices  at  the  Court  house  in  the 
village  of  Catskill,  the  fourth  day  of  July,  one  thousand  eight  hun- 
dred and  forty-nine. 

&  E.  F. 

Pltff's  Att'y. 


[  No.  121.  ] 

Execution  for  the  delivery   of  the  possession  of  real  property  with 

damages  and  costs. 

The  People  of  the  State  of  New-York, 

r"To  the  sheriff  of  the  county  of  Franklin  : 

Whereas  judgment  was  rendered  on  the  first  day  of  November, 
one  thousand  eight  hundred  and  forty-nine,  in  an  action  in  the  Su- 
preme Court,  between  A.  B.  plaintiff,  and  C.  D.  defendant,  in  favor 
of  the  said  A.  B.  against  the  said  C.  D.  for  the  delivery  to  the  said 
A.  B.  of  the  possession  of  certain  real  'property,  to  wit :  [here  de- 
scribe premises]  and  also  for  three  hundred  and  nine  dollars  dam- 
ages and  costs  therein,  as  appears  to  us  by  the  judgment  roll,  filed 
in  the  office  of  the  clerk  of  the  county  of  Franklin;  and  whereas 
the  said  judgment  was  docketted  in  your  county  on  the  first  day  of 
Novem.ber  one  thousand  eight  hundred  and  forty-nine,  and  the  sum 
of  three  hundred  and  nine  dollars,  is  now  actually  due  thereon. 
Therefore  we  command  you,  that  you  deliver  to  the  said  A.  B.  the 
possession  of  the  said  real  property  herein  before  particularly  de- 
scribed and  that  you-satisfy  the  said  damages  and  costs  out  of  the 
personal  property  of  the  said  C.  D.  within  your  county ;  or  if  suffi- 
aient  personal  property  cannot  be  found,  then  out  of  the  real  j  ropcr- 
ty  in  your  county  belonging  to  the  said  C.  D.  on  the  day  Avhcn  the 
gaid  judgment  was  docketted  in  your  county,  or  at  any  time  there- 


PRACTICAL   FORMS.  489 

after  in  whose  hands  soever  the  same  may  be,  and  return  this  exe- 
cutian.  within  sixty  days  after  its  receipt  by  you,  to  the  clerk  of 
the  county  of  Franklin. 

A.  N.,  Pltff's  Atty 
Witness,  John  Willabd,  &c. 


[  No.  122.  ] 

Execution  for  the  delivery  of  the  possession  of  personal  property, 
■   without  damages  or  costs. 

The  people  of  the  state  of  New- York,  to  the  sheriff  of  the  county 
of  Hamilton. 

Whereas  judgment  was  rendered  on  the  first  day  of  September, 
one  thousand  eight  hundred  and  forty-nine,  in  an  action  in  the 
Supreme  Court,  between  A.  B.  plaintiff,  and  C.  D.  defendant,  in 
favor  of  the  said  A.  B.  against  the  said  C.  D.,  for  the  delivery  to 
the  said  A.  B.  of  the  possession  of  certain  personal  property,  to  wit, 
[here  describe  property]*  as  appears  to  us  by  the  judgment  roll, 
filed  in  the  office  of  the  clerk  of  the  county  of  Hamilton ;  and 
whereas,  the  said  judgment  was  docketed  in  your  county  on  the 
third  day  of  September,  one  thousaud  eight  hundred  and  forty- 
nine  :t  therefore  we  command  you,  that  you  deliver  to  the  said  A. 
B.  the  possession  of  the  said  personal  property  hereinbefore  particu- 
larly described,  and  return  this  execution  within  sixty  days  after 
its  receipt  by  you,  to  the  clerk  of  the  county  of  Hamilton. 

Witness,  &c. 

E.  J.,  Plff's  Att'y. 


[  No.  123.  ] 

The  like  with  damages  and  costs. 

[Like  No.  122  doiv7i  to  the  *  then  add,"]  and  also  for  sixty-nine 
dollars,  costs  and  damages  therein,  [then  same  as  in  No.  122  to  the 
t  then  add,]  and  the  sum  of  sixty-nine  dollars  is  now  actually  due 
thereon :  therefore  we  command  you,  that  you  deliver  to  the  said 
A.  B.  the  possession  of  the  said  personal  property,  hereinbefore 
particularly  described,   and  that  you  satisfy  the   said   costs   and 


490  PRACTICAL    FORMS.  ^ 

damages  out  of  the  personal  property  of  the  said  C.  D.,  &c.     {Con- 
clude in  the  usual  form.) 


[  No.  124.  ] 

The  like  and  for  the  value  of  the  property^  if  a  delivery  cannot  he 

had, 

[Like  No.  122  doW7i  to  *  then  add,]  and  also  for  sixty-nine  dollars, 
costs  and  damages  therein,  as  appears  to  us  by  the  judgment  roll 
filed  in  the  office  of  the  clerk  of  the  county  of  Hamilton  ;  and 
whereas,  the  said  judgment  was  docketed  in  your  county  on  the 
third  day  of  September,  one  thousand  eight  hundred  and  forty-nine, 
and  the  sum  of  sixty-nine  dollars  is  now  actually  due  thereon: 
therefore  we  command  you,  that  you  deliver  to  the  said  A.  B.  the 
possession  of  the  said  personal  property,  hereinbefore  particularly 
described,  and  that  you  satisfy  the  said  costs  and  damages  out  of 
the  personal  property  of  the  said  C.  D.  in  your  county,  and  in  case 
a  delivery  of  said  property  cannot  be  had,  that  you  also  satisfy  the 
sum  of  four  hundred  dollars,  being  the  value  of  the  property  for 
which  the  said  judgment  was  recovered,  and  if  sufficient  personal 
property  cannot  be  found,  then  out  of  the  real  property,  &c.  {Con- 
clude in  usual  form.) 

Note. — Executio7is  for  defenda?it  can  be  easily  framed  from  the 
foregoing  forms,  substituting  "  return  " /or  "delivery"  where  it 
occurs. 


[  No.   125.  ] 

Execution  against  the  property,  after  affirmafice  in  the  Court  of 

Appeals, 

The  People  of  the  State  of  New  York, 

To  the  Sheriff  of  the  county  of  Fulton  : 

V/hereas  judgment  was  rendered  on  the  third    day  of  July, 

one  thou>and  eight    hundred  and   forty-nine,   in    an    action  in  the 

Supreme  Court  between  A.  B.,  plaintiff",  and  C.  D.,    defendant,  in 

favor  of  the  said  plaintiff  against  the  said  defendant  for  the  sum  of 


PRACTICAL    FORMS.  491 

two  thousand  dollars,  as  appears  to  us  by  the  judgment  roll  filed  in 
the  office  of  the  clerk  of  the  county  of  Yates  ;  and  whereas  said 
judgment  was  docketed  in  your  county  on  the  tenth  day  of  July, 
one  thousand  eight  hundred  and  forty-nine,  and  whereas  the  said 
defendant  did  appeal  from  the  said  judgment  to  the  Court  of  Ap- 
peals, and  the  said  judgment  being  by  the  said  Court  of  Appeals 
in  all  things  affirmed,  it  was  adjudged  by  the  said  court  that  the 
eaid  plaintiff  recover  from  the  said  defendant  the  sum  of  ninety-five 
dollars,  for  his  costs,  [damages]  and  disbursements  upon  such  ap- 
peal, as  appears  to  us  by  the  judgment  roll  and  proceedings  there- 
upon in  the  said  Court  of  Appeals,  remitted  into  and  now  remain- 
ing in  the  said  Supreme  Court,  upon  which  said  judgment  there  is 
now  actually  due  the  sum  of  two  thousand  four  hundred  dollars. 
Therefore  we  command  you,  that  you  satisfy  the  said  judgments  out 
of  the  personal  property  of  the  said  judgment  debtor,  within  your 
county;  or  if  sufficient  personal  property  cannot  be  found,  then  out 
of  the  real  property  in  your  county  belonging  to  such  judgment 
debtor  on  the  day  when  the  said  judgments  were  docketed  in  your 
county  or  at  any  time  thereafter,  in  whose  hands  soever  the  same 
may  be,  and  return  this  execution  within  sixty  days  after  its  receipt 
by  you  to  the  clerk  of  the  county  of  Yates. 

Witness,  John  Maynard,  Justice  of  the  Supreme  Court,  at  the 
court  house  in  the  village  of  Penn  Yan,  the  first  day  of  October, 
one  thousand  eight  hundred  and  forty-nine. 

E.  F.  Pltf's  Att'y. 


[  No.  126.  ] 

The  like  on  reversal. 

The  People  of  the  State  of  New  York, 

To  the  Sheriff' of  the  county  of  Ulster  : 
Whereas  C.  D.  did  appeal  to  the  Court  of  Appeals  from  a 
judgment  rendered  on  the  fourth  day  of  May,  one  thousand  eight 
hundred  and  forty-nine,  in  an  action  in  the  Supreme  Court,  be- 
tween A.  B.,  plaintiff,  and  the  said  C.  D.,  defendant,  in  favor  of  the 
said  plaintiff'  against  the  said  defendant  for  nine  hundred  dollars; 
and  whereas  the  said  judgment  being  by  the  said  Court  of  Appeals 
in  all  things  reversed,  it  was  adjudged   by  the  said  court  that  the 


492  PRACTICAL   FORMS. 

said  defendant  recover  from  the  said  plaintiff  the  sum  of  ninety-one 
dollars,  for  his  costs,  [damages]  and  disbursements  upon  such  ap- 
peal, as  appears  to  us  by  the  judgment  roll  and  proceedings  in  the 
said  Court  of  Appeals,  remitted  to  and  now  remaining  in  the  said 
Supreme  Court,  And  whereas  the  said  judgment  was  docketed  in 
your  county  on  the  first  day  of  September,  one  thousand  eight  hun- 
dred and  forty-nine,  and  the  sum  of  ninety-one  dollars  is  now  aclu* 
ally  due  thereon;  therefore  we  command  you,  &c.,  (^conclude  as  in 
usual  form.) 


[  No.  127.  ] 
Execution  for  costs  of  motion. 

The  People  of  the  State  of  New  York, 

To  the  Sheriff  of  the  county  of  Richmond,  greeting  : 
Whereas,  an  order  was  made  and  entered  on  the  tenth  day 
of  August,  one  thousand  eight  hundred  and  forty-nine,  in  an  action 
in  the  Supreme  Court,  between  A.  B.,  plaintiff,  and  C.  D.,  de- 
fendant, requiring  the  said  C,  D.  to  pay  to  the  said  A.  B.  the  sum 
of  [ten  dollars]  for  his  costs  of  making  [or  opposing]  a  motion  in 
6aid  action,  [or  for  his  costs  upon  an  appeal  from  an  order  in  said 
action,]  as  appears  to  us  by  the  said  order  entered  in  the  office  of 
the  clerk  of  the  county  of  Richmond.  Therefore,  we  command 
you,  that  you  satisfy  the  said  sum  of  [ten  dollars]  out  of  the  per- 
sonal property  of  the  said  C.  D.,  within  your  county,  and  return 
this  execution  within  sixty  days  after  its  receipt  by  you  to  the  clerk 
of  the  county  of  Richmond. 

Witness  William  T.  McCoun,  one  of  our  justices,  at,  &c.,  the 
first  day  of  September,  one  thousand  eight  hundred  and  forty-nine. 

J.  K.,  Pltf's  Att'y. 


PARCTICAL   FORMS.  493 

[  No.  128.  ] 

Notice  of  appeal  to  the  general  term  of  the  Supreme  Court,  from  a 
judgment  entered  upon  the  direction  of  a  single  judge  of  the  sums 
court. 

Supreme  Court. 

A.  B. 

ag't 

CD. 

To  E.  F.,  Clerk,  of  Greene  county,  and 
G.  H.,  Att'y  for  Plt'ff. 

Sir: 
Take  notice  that  the  [defendant]  appeals  from  the  judgment 
entered  in  this  cause,  to  the  general  term  of  this  court.     Said  judg- 
ment was  entered  upon  the  direction  of  a  single  judge  of  said  court, 
on  the  8th  day  of  August,  1849. 

Dated,  &c. 

Yours,  &c. 

J.  K.,  Att^'y  for  Plt'ff  and 

Appellant. 


[  No.  129.  ] 

Notice  of  appeal  to  the  Supreme  Court,  from  a  judgment  of  an 

inferior  court. 

County  Court  of  Franklin  county 
[or  Mayor's  Court  of  the  city  of 
Utica. 

A.  B.,  plaintiff, 

ag't 
CD.,  defenda7it. 

To  E.  F.,  Plaintiff's  Attorney,  and  J.  N., 
Clerk  of  Franklin  county  jor  clerk  of 
Mayor's  Court  of  Utica]. 

Sir: 

Take   notice    that   the   [defendant]   appeals  to   the   Supreme 
Court,  from  the  judgment  entered  in  this  action  on  the  ninth  day  of 


494  pra(;tical  forms. 

October,  1849,  in  favor  of  the  plaintiff  against  the  defendant  for 
[one  hundred]  dollars  damages,  costs,  and  disbursements. 

Dated,  &c. 

Yours,  &c. 

G.  H.,  Def 't's  Att'y. 


[  No.  130.  ] 

Notice  of  appeal  to  the  general  term  from  a  judgment  entered  upon, 
the  direction  of  a  single  judge,  or  upon  report  of  referees. 

[Title  of  cause  I] 

To  E.  F.,  Plt'ff's  Att'y,  and 

G.  H.,  Clerk  of  Wyoming  county. 
Sir: 

Take  notice  that  the  [defendant]  appeals  to  the  general  term 
of  this  court,  from  the  judgment  entered  in  this  action,  on  the  first 
day  of  September,  1849,  in  favor  of  the  plaintiff  against  the  defend- 
ant, for  [one  thousund]  dollars,  damages,  costs,  and  disbursements. 
Dated,  &c. 

J.  N., 
Def  t's  Att'y. 


r  No.  131.  ] 

Notice  of  appeal  to  the  Court  of  Appeals,  from  a  judgment  of  the 

Supreme  Court. 

Supreme  Court. 

A.  B.,  Plaintiff, 

agt. 
CD.,  Defendant. 

To  E.  F.,  ptff's  Att'y,  and 

G.  H.,  clerk  of  Monroe  county. 
Sir: 

Take  notice,  that  the  (defendant)  appeals  to  the  Court  of  Ap- 
peals, from  the  judgment  entered  in  this  action  on  the  twenty-first 
day  of  October,  1849,  in  favor  of  the  plaintiff  against  the  defendant, 


PRACTICAL   FORMS.  495 

for  (two  thousand  five  hundred)   dollars  damages,  costs,  and  dis- 
bursements. 

Dated,  &c. 

[J.  N.,  Deft's  Att'y. 


[  No.  132.  ] 

Notice  of  appeal  to  the  general  term  from  an  order  made  at  the  special 
term,  or  by  a  judge  out  of  court. 

[Title  of  cause.] 

To  E.  F.,  ptff's  Att'y,  and 

G.  H.,  clerk  of  Livingston  county. 

Sir: 

Take  notice,  that  the  (defendant)  appeals  to  the  general  term, 

from  the  order  entered  in  this  action  with  the  clerk  of  Livingston 

county  on  the  first  day  of  October,  1849,  directing  (or  allowing)  an 

injunction,   (or  attachment,)  or  (to  arrest  the  defendant,)  or  (from 

so  much  of  said  order  as  directs  the  appointment  of  a  receiver  in 

said  action)  [specify  the  part  of  the  order  appealed  from.] 

Date,  &c. 

Yours,  &., 

J.  N.,  Deft's  Att'y. 


[  No.  133.  ] 
Undertaking  to  pay  costs  on  appeal. 

[Title  of  cause.l 

Whereas,  the  above  named  C.  D.  has  appealed  (to  the  Supreme 
Court,  from  a  judgment  entered  in  the  county  court  of  Suffolk 
county,  on  the  first  day  of  September,  one  thousand  eight  hundred 
and  forty  nine,)  or  (to  the  general  term  of  the  Supreme  Court,  from 
a  judgment  entered  upon  the  direction  of  a  single  judge  of  that 
court,  on,  &c.)  or  (to  the  Court  of  Appeals,  from  a  judgment 
entered  in  the  Supreme  Court,  on,  Sec.)  in  favor  of  the  above 
named  plaintiff  and  against  the  above  named  defendant,  for  thet 
sum  of  (four  hundred  and  seventy-five  dollars  and  ninety-four 
cents)  damages  and  costs. 


496  PRACTICAL   FORMS. 

Now  therefore,  we,  J.  N.,  of  &c.,  gentleman,  and  R.  S.,  of  &c., 

merchant,  do  undertake  that  the  said  appellant  will  pay  all  costs 

and  damages  which  may  be  awarded  against  him  on  the  said 

appeal,  not  exceeding  the  sum  of  two  hundred  and  fifty  dollars.* 

Dated,  &c. 

J.N. 
R.  S. 


[  No.  134.  ] 
Affidavit  of  sureties  annexed. 

[Title  of  cause.] 

County  of  Wayne. — J.  N.,  of  &c.,  and  R.  S.,  of  &c.,  being  each 
duly  sworn,  doth  each  for  himself  depose  and  say,  that  he  is  a 
(householder)  or  (freeholder)  of  this  State,  and  is  worth  the  sum 
of  (five  hundred)  dollars  over  and  above  all  debts  and  responsibili- 
ties which  he  owes  or  has  incurred. 

Sworn,  &c. 

J.  N. 

R.  S. 


[  No.  135.  ] 

Acknowledgment  annexed. 

County  of  Wayne.  On  the  first  day  of  November  1849,  before 
me  personally  appeared  I.  N.  and  R.  S.  to  me,  known  to  be  the  in- 
dividuals described  in  and  who  executed  the  foregoing  undertaking 
and  severally  acknowledged  that  they  executed  the  same. 

P.  R. 
Justice  of  the  Peace, 
or  Com'r  of  Deeds, 


PRACTICAL   FORMS.  497 

[  No.  136.  ] 

Undertaking  to  stay  execution  on  appeal  from,  judgment  for  the  pay- 
ment of  money. 

[The  same  as  in  No.  133  to  the   *  then  add]  And  if  the  judgment 

appealed  from  or  any  part  thereof  be    affirmed,  the   said  appellant 

will  pay  the  amount  directed   to  be  paid  by  the  said  judgment, 

or  the  part  of  such   amount  as  to  which  the  said  judgment  shall 

be  affirmed,  if  it  be  affirmed  only  in  part,  and  all  damages  which 

shall  be  awarded  against  the  said  appellant  upon  the  said  appeal. 

Dated  &c. 

J.N. 

R.  S. 

[jidd  to  ike  affidavit  of  justification  of  sureties  {which  should  be  in 
double  the  amoiint  of  the  judgment  and  of  the  costs  of  the  appeal,} 
as  in  No.   134.    Also  acknowledgment  as  in  No.  135.] 


[  No.  137.  ] 

Undertaking  to  stay  execution  on  appeal  from  judgment,  directing 
the  assi gnment  or  delivery  of  documents,  or  personal  property,  where 
the  same  are  not  brought  into  court,  or  placed  in  the  custody  of  an 
officer  or  receiver  appointed  by  the  Court. 

[The  same  as  in  No.  133  to  the  X,  then  add^  delivery  to  the  said 
plaintiff,  of  certain  documents  [here  describe  documents  as  a  certain 
last  will  and  testament  of  one  A.  B.  dated  SfC.  or  of  a  certain  deed  or 
conveyance  of  real  property,  made  by  A.  B.  of  the  first  part  and  C. 
D.  of  the  second  part,  dated  ^c.  conveying  the  following  described 
premises]  or  [delivery  of  certain  personal  property  viz:  {here  describe 
them)  and  for  the  sum  of  [four  hundred  dollars  damages  for  with- 
holding the  possession  thereof,]  and  [fifty-five  dollars]  costs  and 
disbursements. 

Now,  therefore,  we  I.  N.  of  &c.,  produce  merchant,  and  R.  S.  of 
&c.  farmer,  do  undertake  in  the  sum  of  [one  thousand]  dollars  that 
the  said  appellant  will  obey  the  order  of  the  [Supreme  Court]  or 
[of  the  general  term  of  the  Supreme  Court]  or  [of  the  Court  of  Ap- 
peals] upon  the  said   appeal ;  and  will  in  addition  pay  all  costs  and 

32 


498  PRACTICAL   FORMS. 

damages  which  may  be  awarded  against  him   on  the   said  appeal, 

not  exceeding  the  sum  of  two  hundred  and  fifty  dollars. 

Dated  &c.  I.  N. 

R.  S. 

[Add  affidavit  of  justification  of  sureties  {which  must  be  in  double 
the  amount  specified  in  the  undertaking,  and  of  the  costs  on  the  ap' 
peal)  as  in  No.  134.     Also  acknowledgment,  as  in  No.  135.] 


[  No.  138.  ] 

Undertaking  to  stay  execution  on  appeal  from  judgment,  directing 
the  sale  or  delivery  of  real  property. 

[The  same  as  in  No.  133,  to  the  t,  then  add]  sale  [or  delivery  of 
the  possession  of  to  the  said  plaintiff]  of  certain  real  property  which 
is  bounded  and  described  as  follows  [here  insert  description]  and  [for 
the  sum  of  eight  hundred  dollars  damages  for  withholding  the  pos- 
session thereof]  and  [seventy-four  dollars]  costs  and  disbursements. 

Now  therefore,  we,  I.  N.  of  &c.  farmer,  and  R.  S.  of  &c.  inn- 
keeper, do  undertake  that  during  the  possession  of  such  property  by 
the  said  appellant,  he  will  not  commit  or  suffer  to  be  committed, 
any  waste  thereon,  and  that  if  the  said  judgment  be  affirmed,  he 
will  pay  the  value  of  the  use  and  occupation  of  the  property,  from 
this  time  until  the  delivery  of  the  possession  thereof,  pursuant  to 
said  judgment,  not  exceeding  the  sum  of  [one  thousand]  dollars  ; 
and  will  in  addition  pay  all  costs  and  damages  which  may  be  awar- 
ded against  him,  on  said  appeal,  not  exceeding  the  sum  of  two 
hundred  and  fifty  dollars. 

Dated  &c.  I-  N. 

R.  S. 

[Add  affidavit  of  justification  of  sureties  {which  must  he  in  double 
the  amount  specified  in  the  undertaking  and  of  the  costs  on  the  appeal) 
as  in  No.  134.     j^lso  acknowledgment  as  in  No.  135.] 


[  No.   139.  ] 

Undertaking  to  stay  execution  on  appeal  from  judgment,  directing 
the  sale  of  inort gaged  premises  arid  paijment  of  the  deficiency. 

[The  same  as  in  No.  133  to  the  t,  then  add]  sale  of  certain  mort- 


PRACTICAL    FORMS.  499 

gaged  premises  which  are  bounded  and  described  as  follows,  {here 
describe  premises)  and  for  the  payment  by  the  said  C.  D.,  of  any 
deficiency  that  may  remain  upon  a  sale  of  said  mortgaged  premises, 
and  also  the  sum  of  (ninety-four  dollars)  costs  and  disbursements. 

Now  therefore,  we,  J.  N.,  of,  &c.,  farmer,  and  R.  S.,  of,  &c., 
innkeeper,  do  undertake  that  during  the  possession  of  said  property 
by  the  said  appellant,  he  will  not  commit,  or  suffer  to  be  committed, 
any  waste  thereon,  and  that  if  the  said  judgment  be  affirmed,  he 
will  pay  the  value  of  the  use  and  occnpation  of  the  property  from 
this  time  until  the  delivery  of  possession  thereof,  pursuant  to  said 
judgment,  and  the  deficiency  (if  any)  that  shall  remain  after  the 
application  of  the  proceeds  of  the  sale  thereof,  pursuant  to  said 
judgment,  not  exceeding  the  sum  of  (two  thousand)  dollars,  and 
will  in  addition  pay  all  costs  and  damages  which  may  be  awarded 
against  him  on  said  appeal,  not  exceeding  the  sum  of  two  hundred 
and  fifty  dollars. 

Dated,  &c. 

J.  N. 
E.  S. 

[Add  affidavit  of  JKStiJication  of  sureties  {which  must  he  in  double 
theamount  specified  in  the  undertaki?jg,  and  of  the  costs  on  the  appeal) 
as  in  No.  134  ;  also,  acknowledgmement  as  in  No.  135.] 


[  No.  140.  ] 

Affidavit  to  obtain  order  for  judgment  debtor  to  make  discovery  after 
return  of  an  execution  unsatisfied. 

Supreme  Court. 

A.  B.,  plaintiff", 

ag'st. 
C.  D.,  defendant. 

County  of  Orange. — A.  B.,  the  above  named  plaintiflf  being 
duly  sworn,  says  that  judgment  was  recovered  in  this  action  against 
the  above  named  defendant,  C.  D.,  on  the  first  day  of  August,  one 
thousand  eight  hundred  and  forty-nine,  for  five  hundred  dollars  and 
costs  ;  and  the  judgment  roll  filed  in  the  office  of  the  clerk  of  the 
county  of  Orange  ;  that  an  execution  against  the  property  of  the 
judgment  debtor  has  been  duly  issued  to  the   sheriff*  of  the  said 


500  PRACTICAL   FORMS, 

county  of  Orange ;  that  the  judgment  debtor  resided  in  the  said 

county  at  the  time  of  issuing  such  execution,  and  still  so  resides  ;  and 

that  the  said  sheriff  has  returned  the  said  execution  unsatisfied. 

Sworn,  &c.  4 

A.  B.  ^ 


[  No.  141.  ] 

Order  for  judgment  debtor  to  make  discovery  on  return  of  an  execu- 
tion unsatisfied. 

A.  B.,  plaintiff, 

ag''st. 
C.  D.,  defendant. 

It  appearing  to  me  by  the  affidavit  of  the  plaintiff,  that  an  exe- 
cution against  the  property  of  C.  D.,  the  defendant  in  this  action, 
has  been  duly  issued  to  the  sheriff  of  the  proper  county  upon  the 
judgment  herein,  and  returned  unsatisfied;  I  do  hereby  require  the 
said  C.  D.  to  appear  before  me,  at  my  office  in  the  city  of  Albany, 
on  the  tenth  day  of  September,  one  thousand  eight  hundred  and 
forty-nine,  at  ten  o'clock  in  the  forenoon,  to  make  discovery  on  oath 

concerning  his  property. 

A.  J.  Parker, 
Justice  Supreme  Court. 
Dated,  &c. 


[  No.  142.  ] 

j^ffidavit  to  procure  order  to  examine  third  person  as  to  property, 

fyc,  of  judgment  debtor. 

A.  B.  plaintiff, 

ag'st. 
C.  D.,  defendant. 

County  of  Putnam. — A.  B.,  the  above  named  plaintiff,  being  duly 
sworn,  says  that  judgment  was  rcovered  herein  on  the  tenth  day  of 
July,  one  thousand  eight  hundred  and  forty-nine,  for  two  hundred 
dollars  and  twenty-five  cents,  and  the  record  thereof  filed  in  the 
office  of  the  clerk  of  the  county  of  Putnam  ;  that  an  execution 


PRACTICAL  FORMS.  601 

against  the  property  of  the  said  C.  D.,  has  been  dulj'  issued  to  the 
sheriff  of  the  county  of  Putnam,  and  has  been  returned  by  said 
sheriff,  unsatisfied,  and  that  E.  F.,  of  the  town  of  Cannel,  in  said 
county,  has  property  of  the  said  C.  D.,  [or  is  indebted  to  such 
defendant,  C.  D.,  in  an  amount  exceeding  the  sum  of  ten  dollars,] 
and  further  he  says  not. 

Subscribed  and  sworn,  &c. 


[  No  143.  ] 
Order  to  examine  third  person  as  to  property  (f  judg7m7it  dehto.r. 

Supreme  Court. 

A.  B.,  plaintiff, 

ag^st. 
C.  D,,  defendant. 

It  appearing  to  me  that  an  execution  against  the  property  of  C. 
D.,  the  defendant  in  this  action,  has  been  duly  issued  to  the  sheriff 
of  the  proper  county  upon  the  judgment  herein,  and  returned  un- 
satisfied, and  that  E.  F.,  of  the  town  of  Hunter,  in  the  county  of 
Greene,  has  property  of  the  judgment  debtor,  or  is  indebted  to 
him  ;  I  do  hereby  require  the  said  E.  F,  to  appear  before  me,  at 
my  chambers  in  the  town  of  Durham,  on  the  first  day  of  Septem- 
ber, one  thousand  eight  hundred  and  forty-nine,  and  be  examined 

concerning  the  same. 

L.  Tremain, 
County  judge  of  Greene  county. 
Dated,  &c. 


[  No.  144.  ] 

Affidavit,  to  ohtai7i  order  for  judgment  debtor,  to  make  discovery, 
after  execiUion  ibsue  and  before  return. 

[Title  of  cause.'] 

County  of  Erie. — A.  B.  the  above  named  plaintiff,  being  duly 
sworn  says,  that  judgment  was  recovered  in  this  action,  against  the 
above  named  defendant,  on  the  first  day  of  July,  one  thousand 
eight  hundred  and  forty-nine,  for  five  hundred  dollars,  and  costs: 


502  PRACTICAL   FORMS. 

that  the  judgment  roll  was  filed  in  the  office  of  the  clerk  of  the 
county  of  Erie,  and  that  an  execution  against  the  property  of  the 
judgment  debtor,  has  been  duly  issued  to  the  sheriff  of  the  said 
county  of  Erie,  that  the  judgment  debtor  resided  in  said  county  at 
the  time  of  issuing  said  execution,  and  now  resides  therein.  And 
deponent  further  says  that  said  judgment  debtor  has  property,  to 
wit,  a  promissory  note  for  five  hundred  dollars,  made  by  one  A.  K. 
which  he  unjustly  refuses  to  apply  towards  the  satisfaction  of  the 
said  judgment. 


Sworn,  &c. 


A.  B. 


[  No.  145.  ] 
Order  thereupon. 

[THtle  of  cause.] 

It  appearing  to  me  by  the  affidavit  of  the  plaintiff,  that  an  exe- 
cution against  the  property  of  C.  D.,  the  defendant  in  this  action, 
has  been  duly  issued  to  the  sheriff  of  the  proper  county,  upon  the 
judgment  in  this  cause,  and  that  said  defendant  has  property,  to 
wit,  a  promissory  note  for  five  hundred  dollars,  made  by  one  A.  K., 
which  he  unjustly  refuses  to  apply  towards  the  satisfaction  of  the 
said  judgment :  I  do  hereby  require  the  said  C.  D.  to  appear  before 
me,  at  my  office  in  the  city  of  Troy,  on  the  eighteenth  day  of  No- 
vember next,  at  ten  o'clock  in  the  forenoon,  to  answer  concerning 
such  property. 


Dated,  &;c. 


A.  R.,  County  Judge  of  Rensselaer  Co. 


[  No.  146.  ] 

Affidavit  to  procure  warrant. 

[Title  of  cause] 

Broome  county. — A.  B.  plaintiff  in  this  cause,  being  duly  sworn 
savs,  that  judgment  was  recovered  in  this  action  against  the  above 
named  defendant,  on  the  tenth  day  of  August,  one  thousand  eight 


PRACTICAL    FORMS.  503 

hundred  and  forty-nine,  for  one  thousand  dollars  and  costs:  that 
the  judgment  roll  was  filed  in  the  office  of  the  clerk  of  the  county 
of  Broome,  and  that  an  execution  has  been  issued  against  the  pro- 
perty of  the  judgment  debtor,  to  the  sheriff  of  the  said  county  of 
Broome,  that  being  the  county  in  which  the  said  judgment  debtor 
resided  at  the  time  of  issuing  said  execution  and  now  resides,  [and 
that  the  said  sheriff  has  returned  the  said  execution  unsatisfied,] 
[or  that  the  said  judgment  debtor  has  property  [describing  it]  which 
he  unjustly  refuses  to  apply  towards  the  satisfaction  of  said  judg- 
ment.] And  defendant  further  says  that  he  has  reason  to  believe 
and  does  believe,  that  there  is  danger  of  said  debtor's  absconding 
and  going  beyond  the  reach  of  the  process  of  any  court  or  officer  of 
this  state,  and  that  such  belief  is  founded  upon  the  following  facts 
and  circumstances:  [here  state  particularly  the  facts  and  circum- 
stances.] 
Sworn,  &c. 

A.  B. 


[  No.  147.  ] 
n  arrant  against  judgment  debtor. 

[Title  of  cause.] 

To  the  sheriff  of  the  county  of  Monroe. 

It  appearing  to  me  by  the  affidavit  of  the  plaintiff,  that  an  ex- 
ecution  against  the  property  of  C.  D.,  the  defendant  in  this  action,, 
has  been  duly  issued  to  the  sheriff  of  the  proper  county,  upon  the 
judgment  herein,  [and  returned  unsatisfied,]  [or  that  the  judgment 
debtor  has  property  which  he  unjustly  refuses  to  apply  towards  the 
satisfaction  of  the  said  judgment,]  and  it  also  appearing  to  me  by 
the  said  affidavit,  that  there  is  danger  of  the  said  debtor's  abscond- 
ing, I  do  hereby  require  you  forthwith  to  arrest  the  said  C.  D.  and 
bring  him  before  me,  to  be  dealt  with  according  to  law. 

Given  under  my  hand  at  the  city  of  Rochester,  this  first  day  of 
October,  one  thousand  eight  hundred  and  forty-nine. 

A.  N.,  County  Judge  of  Monroe  Co. 


504  PRACTICAL   FORMS. 

[  No.  148.  ] 

Undertaking  by  debtor  arrested  upon  a  warrant. 

[Title  of  causeJ] 

Whereas  the  defendant  C.  D.  has  been  arrested  by  the  sheriff  of 
the  county  of  Onondaga,  upon  a  warrant  issued  by  the  Hon.  A.  L., 
county  judge  of  said  county,  and  has  been  brought  before  said 
judge,  now,  therefore,  we  the  said  C.  D.  and  E.  F.,  as  surety,  do 
hereby  undertake,  that  the  said  C.  D.  will  attend  from  time  to  time 
before  the  said  judge  [or  referee,  in  case  one  is  appointed,]  as  he 
shall  direct,  during  the  pendency  of  the  proceedings  and  until  the 
final  determination  thereof,  and  will  not  in  the  mean  time  dispose 
of  any  portion  of  his  property  exempt  from  execution. 

Dated,  &c. 

C.  D. 

E.  F. 

[Add  affidavit  of  justification  of  sureties,  as  in  No.  134,  also  aC' 
knoioledgment,  as  in  No.  135.] 


[  No.  149.  ] 

Order  forbidding  transfer  of  property. 

[Title  of  cause.] 

It  appearing  to  me  by  the  affidavit  of  the  plaintiff,  that  an  ex- 
ecution against  the  property  of  C.  D.,  the  defendant  in  this  action, 
has  been  duly  issued  to  the  sheriff  of  the  proper  county,  upon  the 
judgment  herein,  and  returned  unsatisfied.  I  do  hereby  forbid  the 
transfer  or  other  disposition  of  the  property  of  the  said  judgment 
debtor,  and  do  order  that  you,  the  said  C.  D.,  do  absolutely  desist 
and  refrain  from  any  interference  therewith,  until  a  further  order 
shall  be  made. 
Dated,  &c. 

A.  N.,  County  Judge. 


PRACTICAL    FORMS.  505 

-       [  No.  150.  ] 

Order  directing  property  of  judgmeiit  debtor  to  he  applied. 

[Title  of  caiise.] 

It  appearing  to  my  satisfaction,  that  CD.,  the  judgment  debtor, 
has  property  not  exempt  from  execution  [or  that  E.  F.  has  property 
belono-ino-  to  such  debtor,  or  that  G.  H.  is  indebted  to  such  debtor 
in  the  sum  of  one  hundred  dollars] :  I  do  hereby  order,  that  all  such 
property  of  the  judgment  debtor  not  exempt  from  execution,  in  the 
hands  either  of  himself  or  of  any  other  person,  or  due  to  such  judg- 
ment debtor,  be  applied  towards  the  satisfaction  of  the  judgment  in 
this  cause. 

Dated,  &c., 

N.  S.,  County  Judge. 


[  No.  151.  ] 

Order  for  appointment  of  receiver  of  judgment  debtor  s  property. 

[Title  of  cause.'\ 

CD.,  the  judgment  debtor  in  the  above  entitled  action,  having 
been  examined  before  me  concerning  his  property,  in  pursuance  of 
an  order  heretofore  made  by  me,  1  do  hereby  order  that  L.  M.,  of 
the  town  of  New  Scotland,  in  the  county  of  Albany,  be,  and  he 
hereby  is,  appointed  receiver  of  all  the  debts,  property,  equitable  in- 
terests, rights,  and  things  in  action  of  the  said  judgment  debtor  ; 
that  such  receiver,  before  he  enter  upon  the  execution  of  his  trust, 
execute  to  the  clerk  of  this  court  a  bond,  with  sufficient  sureties, 
to  be  approved  by  me,  in  a  penalty  of  one  thousand  dollars,  condi- 
tioned, that  he  will  faithfully  discharge  the  duties  ai  such  trust, 
and  file  the  same  with  the  clerk  of  the  county  of  Albany  ;  and  that 
the  said  receiver,  upon  filing  such  bond,  be  invested  with  all  rights 
and  powers,  as  receiver,  according  to  law. 

Dated.  ^  ^   ^ 

A.  R.,  County  Judge. 


506  PRACTICAL   FORMS. 

[  No.  152.  ] 

Receiver^  Bond 

Know  all  men  by  these  presents,  That  we,  L.  M.,  of  the  town 
of  New  Scotland,  in  the  county  of  Albany,  and  A.  R.,  of  the  said 
place,  are  held  and  firmly  bound  unto  the  clerk  of  the  Supreme 
Court  of  the  State  of  New-York,  in  the  sum  of  one  thousand  dol- 
lars, lawful  money  of  the  United  States  of  America,  to  be  paid  to 
the  said  clerk,  his  successor  in  office,  or  assigns :  For  which  pay- 
ment well  and  truly  to  be  made,  we  bind  ourselves,  our  heirs,  ex- 
ecutors, and  administrators,  jointly  and  severally,  firmly  by  these 
presents,  sealed  with  our  seals,  dated  the  first  day  of  September, 
one  thousand  eight  hundred  and  forty-nine. 

Whereas,  by  an  order  made  by  the  honorable  A.  R.,  county  judge 
of  Albany  county,  on  the  tenth  day  of  August,  1849,  the  above 
bounden  L.  M.  was  appointed  receiver  of  all  the  debts,  property, 
equitable  interests,  rights,  and  things  in  action  of  C.  D.,  a  judgment 
debtor.  Now  the  condition  of  this  obligation  is  such,  that,  if  the 
said  L.  M.  shall  faithfully  discharge  the  duties  of  his  trust,  as  such 
receiver,  then  this  obligation  to  be  void,  otherwise  to  be  in  full  force 
and  effect.     Sealed  and  delivered  in  presence  of 

L.  M.         [L.  S] 
A.  K.         [L.  S.] 

yAdd  affidavit  of  justification  of  sureties,  as  in  No.  134.     Also, 

acknowledgment,  as  in  No.  135.] 

[Endorsement.] 

I  approve  of  the  within  bond,  and  of  the  sufficiency  of  the 

sureties. 

A.  R.,  County  Judge. 


[  No.  153.  ] 

Report  of  referees. 

[Title  of  cause.] 

The  undersigned,  referees,  (ox  sole  referee,)  appointed  in  this 
cause,  having  heard  the  proofs  and  allegations  of  the  parties,  and 
heard  the  arguments  of  their  counsel,  and  duly  considered  the 
same  and   deliberated  thereon,  do   certify  and  report,    that  there  ia 


PRACTICAL    FORMS.  507 

due  from  the  defendant  to   the  plaintiff  the  sum  of  five  hundred 
dollars. 


A.  B.    ) 
C.  D.    i 


Referees. 


[  No.  154.  ] 

Petition  to  continue  action  against  representatives  of  deceased 

defendants. 

[Title  of  causeJ] 

To  the  Supreme  Court  of  the  State  of  New-York : 
The  petition  of  A.  B.,  of  &c.,  plaintiff  in  this  suit,  respectfully 
shows  that  this  action  was  commenced  against  the  above  named 
defendant  to  recover  the  sum  of  five  hundred  dollars  and  interest, 
upon  the  promissory  note  of  the  defendant  for  that  amount,  dated 
on  the  first  day  of  July,  one  thousand  eight  hundred  and  foriy-nine, 
payable  to  the  plaintiff  or  order  sixty  days  after  date,  \or  the  cause 
of  the  action  as  it  w.]  That  an  issue  of  fact  has  been  joined  in 
said  action  by  a  reply  to  the  answ^er  of  the  defendant,  [or  that  an 
issue  of  law  has  been  joined  in  said  action,  by  a  demurrer  to  the 
complaint  or  answer.]  Your  petitioner  further  shows  that,  as  he 
has  been  informed  and  believes  true,  the  said  defendant  departed 
this  life  on  or  about  the  eighth  day  of  November  last,  intestate, 
and  that  on  or  about  the  twenty-fifth  day  of  November  last,  E.  F., 
of  the  town  of  Esopus,  in  the  county  of  Ulster,  was  duly  appointed 
by  the  surrogate  of  said  county  of  Ulster,  the  administrator  of  all 
and  singular,  the  goods,  chattels,  right  and  credits  of  said  CD. 

Your  petitioner  therefore  pra3's,  that  the  said  action  may  be  con- 
tinued against  the  said  E.  F.,  administrator  as  aforesaid. 

Dated,  dec. 

A.  B. 
G.  H.,  Pltff's  Att'y. 


508  PRACTICAL    FORMS. 

[  No.  155.  ] 

Affidamt  of  verification  annexed. 

County  of  Ulster.— A.  B.,  in  the  foregoing  petition  named,  be- 
ing sworn,  says,  that  he  has  read  [or  heard  read]  the  foregoing  pe- 
tition, and  that  he  believes  the  same  to  be  true. 

Sworn,  &c. 

A.  B. 


[  No.  156.  ] 
Notice  of  motion  on  above  petition. 

[Title  of  cause.] 

To  J.  K.,  Def'ts  Att'y,  and 
E,  F.,  Adm'r,  &c. 

Sir: 

Take  notice  that  I  shall  present  the  petition  (a  copy  whereof 
is  hereto  annexed,)  to  this  court,  at  a  special  term  thereof  to  be 
held  at  the  city  hall  in  the  city  of  Albany,  on  the  last  Tuesday  of 
December  next,  at  the  opening  of  the  court,  and  move  the  said 
court  for  an  order  granting  the  prayer  thereof,  or  for  such  further, 
or  for  such  other  order  or  relief  as  the  court  may  grant. 

Yours,  &c., 

G.  H.,  Pltf's  Att'y. 


[  No.  157.  ] 

Order  therevpon. 

At  a  special  term  of  the    Supreme   Court,  held  at  the  city  hall  in 
the  city  of  Albany,  on  the  last  Tuesday  of  December,  one  thou- 
sand eight  hundred  and  forty-nine. 
Present:  William  B.  Wright,  Justice. 
A.   B. 

vs. 
C.  D. 

On  reading  and  filing  a  petition  in   this  cause,    duly  verified 
and  dated  on  the  20th  day  of  November,    1S49,  *  and  after  hear- 


PRACTICAL    FORMS.  509 

ing  Mr.  J.  N.,  of  counsel  for  the  petitioner,  and  Mr.  R.  S.,  of  coun- 
sel for  E.  F.,  administrator  of  C  D.,  deceased,  it  is  ordered  that 
this  action  be  and  the  same  is  hereby  continued  against  the  said 
E.  F.,  administrator,  &c.,  of  CD.,  the  defendant  therein,  deceased. 


[  No.  158.  ] 
The.  like  where  no  one  apyexis  to  oppose. 

[Like  No.  157  to  the  *,  then  add,]  and  also  proof  of  the  due  ser- 
vice of  a  copy  of  said  petition  and  notice  of  motion  thereon,  upon 
the  defendant's  attorney,  and  also  upon  E.  F.,  administrator  of 
said  C.  D.,  on  motion  of  Mr.  J.  N.,  of  counsel  for  the  plaintiff,  no 
one  appearing  to  oppose,  it  is  ordered,  &c.,  [same  as  in  last  form.] 

Note, — A  ■petition,  SfC.y  by  defefidant,  upon  death  of  the  plaintiff 
or  by  representatives  of  plaintiffs  to  continue  the  action  can  easily  be 
framed  from  the  above  forms. 


[  No.  159.  ] 
Petitio?i  for  the  appoint7nent  of  a  guardian  of  an  infant  plaintiff. 

To  the  Supreme  Court  of  the  State  of  New  York. 

The  petition  of  A.  B.,  an  infant  of  the  age  of  fourteen  years  and 
upwards,  {if  the  infant  be  under  14,  then  the  petition  must  be  by 
some  relative,)  respectfully  shows,  that  your  petitioner  is  about  to 
commence  a  suit  in  the  Supreme  Court  against  C.  D.,  for  {here 
state  cause  of  action.) 

But  as  your  petitioner  is  an  infant,  as  above  stated,  he  prays  that 
J.  N.,  of  &c.,  (who  is  the  general  guardian  of  your  petitioner,  or, 
who  is  an  attorney  of  this  court,)  a  competent  and  responsible  per- 
son, may  be  appointed  to  prosecute  the  said  suit  for  your  petitioner, 
as  his  guardian,  according  to  the  statute  in  such  case  made  and 
provided. 

Dated  this  first  day  of  August,  1849. 

A.  B. 

Witness,  W.  S. 


510  PRACTICAL   FORMS. 

[  No.  160.  ] 

Consent  of  guardian  annexed. 

I  consent  to  become  the  guardian  of  A.  B.,  in  the  suit  mentioned 

in  the  above  petition. 

Dated,  &c. 

J.  N. 

Witness,  W.  S. 


[  No.  161.  ] 

Affidavit  annexed. 

County  of  Ulster.— P.  N.,  of  &c.,  being  duly  swcrn,  says  that 

A.  B.,  in  the  annexed  petition  named,  did,   on  the  first  day  of 

August  instant,  duly  sign  the  said  petition  in  the  presence  of  this 

deponent ;  and  that  J.  N  ,  in  the  prayer  of  the  said  petition  named, 

did  at  the  same   time  sign  the  consent  thereunder  written,  as  the 

guardian  of  the  said  A.  B  ,  in  the  presence  of  this  deponent. 

Sworn,  &c. 

P.N. 


[  No.  162.  ] 

Certificate  of  the  judge  endorsed. 

I  certify  that  I  have   examined   into  the  circumstances  of  the 

within  petition,  and  am  of  opinion  that  J.  N.,  who  is  proposed  in 

such  petition  as  guardian  of  the  petitioner,  is  a  suitable  and  proper 

person  to  be  such  guardian  ;  and  that  he  has  no  interest  in  the  suit 

in  opposition  to  the  interest  of  the  petitioner. 

Dated,  &Ce 

O.  R.,  county  judge,  &c. 


PRACTICAL   FORMS.  511 

[  No.  163.  ] 
Order  thereon. 

At,  &c.,  (as  in  No.  157). 

[Title  of  cause."] 

Supreme  Court. — On  filing  the  petition  of  A.  B.,  an  infant  of  the 
age  of  fourteen  years  and  upwards,  praying  for  the  appointment 
of  J.  N.,  as  his  guardian,  to  prosecute  a  suit  in  the  Supreme  Court 
against  C.  D.,  and  also  the  papers  thereto  annexed,  it  is  ordered 
that  the  said  J.  N.  be,  and  he  hereby  is,  appointed  such  guardian. 


[  No.  164.  ] 
Petition  for  the  appointment  of  a  guardian  for  an  infant  defendant. 

To  the  Supreme  Court  of  the  State  of  New-York  : 

The  petition  of  C.  D.,  an  infant  of  the  age  of  fourteen  years,  and 
upwards,  to  wit  of  the  age  of  sixteen  years,  respectfully  shows: 

That  an  action  has  been  commenced  against  your  petitioner  in 
the  Supreme  Court,  by  A.  B.,  for  {here  state  cause  of  action,]  and 
that  the  summons  therein  was  served  on  him  on  the  first  day  of 
October,  1849. 

But  as  your  petitioner  is  an  infant,  as  above  stated,  he  prays  that 
E.  G.,  of,  &c.,  [general  guardian  of  your  petitioner,  or  an  attorney 
of  the  Supreme  Court,]  may  be  appointed  guardian  of  your  peti- 
tioner in  the  defence  of  the  said  suit,  according  to  the  statute  in 
such  case  made  and  provided. 

Dated,  &c. 

CD. 

Witness,  R.  S. 


[  No.  165.  ] 

CoTtsent  of  guardian  annexed. 

I  consent  to  become  the  guardian  of  C.  D.  in  the  defence  of  the 
suit  mentioned  in  the  above  petition. 
Dated,  &c. 
Witness,  R.  S. 


512  PRACTICAL    FORMS. 

[The  affidavit  of  the  signatures  and  the  certificate  of  the  judge  is 
the  same  as  that  appended  to  the  last  form.,  and  the  order  will  be  the 
same,  substituting  the  word  "  defe?id"for  "  prosecute."] 


[  No.   166.  ] 

Petition  by  plaintiff  for  appointment  of  guardian  for  infant  defend- 
ant who  has  neglected  to  apply. 

[Title  of  cause.] 

To  the  Supreme  Court  of  the  State  of  New-York  : 

The  petition  of  A.  B.,  of,  &c.,  respectfully  shows  :  That  an  ac- 
tion has  been  commenced  by  your  petitioner  in  the  Supreme  Court 
against  C,  D.,  who  is  an  infant  under  the  age  of  twenty-one  years, 
for  [here  state  cause  of  action.]  that  the  summons  in  the  said  action 
was  served  upon  the  said  C.  D.  more  than  twenty  days  since,  and 
that  said  C.  D.  has  not,  nor  has  any  relative  or  friend  of  said  C.  D. 
applied  for  the  appointment  of  a  guardian  of  said  C.  D.  to  defend 
said  action. 

Your  petitioner  therefore  prays  that  some  suitable  and  proper 

person  may  be  appointed  the  guardian  of  said  C.  D.  to  defend  said 

action. 

A.  B. 

Dated,  &c. 


[  No.  167.  ] 
Order  to  be  e?itered  thereon. 

At,&c.,  (a3  in  No.  157). 

[Title  of  cause] 

On  reading  and  filing  the  petition  of  A.  B.,  plaintiff  in  this  ac- 
tion, praying  for  the  appointment  of  some  suitable  and  proper  per- 
son as  the  guardian  of  C.  D.,  defendant  in  said  action,  who  is  an 
infant  under  the  age  of  twenty-one  years.  On  motion  of  E.  G., 
attorney  for  plaintiff,  I  do  hereby  appoint  I.  N.,  of,  &c.,  an  attorney 
of  this  court,  the  guardian  of  said  C.  D.  to  defend  this  action. 


PRACTICAL   FORMS.  513 

[  No.  168.  ] 

Demand  to  have  action  tried  in  proper  county. 

[Title  of  cause.'] 

To  E.  F.,  plaintiff's  attorney. 

Sir — The  defendant  hereby  demands  that  the  trial  of  this  action 

be  had  in  the  county  of  Ulster  instead  of  the  county  of  Orange,  as 

designated  in  the  complaint. 

G.H.,  Def'ts  Atty. 
Dated,  &c. 


[  No.  169.  ] 

Undertaking  by  plaintiff  to  prosecute  suits,    concerning  attached 

property. 

[  Title  of  cause?^ 

Whereas,  A.  B.  sheriff  of  the  county  of  Wayne,  has  attached  and 
taken  into  his  custody,  certain  property  and  effects  of  C.  D.  the  above 
named  defendant,  concerning  which  it  is  intended  to  commence  one 
or  more  actions.  And  whereas  the  said  sheriff  has  consented  that 
such  actions  may  be  prosecuted  by  the  above  named  plaintiff  or  un- 
der his  direction.  Now  therefore  we,  E.  F.  of  &c.  wagon  maker, 
and  G.  H.  of  &c.  tanner,  undertake  that  the  plaintiff  will  indemnify 
the  said  A.  B.,  sheriff  as  aforesaid,  from  all  damages,  costs  and  ex- 
penses on  account  of  said  actions  or  either  of  them,  not  exceeding 
however  the  sum  of  two  hundred  and  fifty  dollars  in  any  one  action. 

Dated  &c. 

E.  F. 
G.H. 

\Add  affidavit  of  justification  as  in  JS'b.  134,  and  proof  or  acknow- 
ledgment as  in  No.  135.] 


[  No.  170.  ] 

Bond  to  indemnify  sheriff  upon  claim  nf  third  person  of  property  ta- 
ken upon  attachment. 

Know  all  men  by  these  presents,  that  we,  A.  B.  of  &c.  and  C.  D. 

33 


514  PRACTICAL     FORMS. 

of  &:c.  are  held  and  firmly  bound  unto  J.  K.,  sheriff  of  the  county  of 
Genesee,  in  the  sum  of  five  hundred  dollars,  lawful  money  of  the 
United  States,  to  be  paid  to  the  said  J.  K.,  sheriff  as  aforesaid,  his 
executors,  administrators  and  assigns,  for  which  payment  well  and 
truly  to  be  made,  we  bind  ourselves  our  heirs,  executors  and  ad- 
ministrators, jointly  and  severally  firmly  by  these  presents,  sealed 
with  our  seals  and  dated  the  first  day  of  August,  one  thousand  eight 
hundred  and  forty-nine. 

Whereas  an  attachment  has  been  issued  in  an  action  in  the  Su- 
pseme  Court  in  favor  of  the  above  named  A.  B.,  against  one  E.  F., 
upon  which  the  above  named  J.  K.  sheriffof  the  said  county  of  Gen- 
esee, has  attached  and  taken  into  his  custody,  certain  goods  and 
chattels,  viz  :  [here  describe  them)  ;  and  whereas  G.  H.  of  &c.  claims 
the  said  goods  and  chattels  as  his  :  Now  therefore  the  condition  of 
this  oblicration  is  such  that  if  the  above  bounden  A.  B.  shall  and 
does  well  and  sufficiently  indemnify,  save  and  keep  harmless  the 
said  J.  K.,  sheriff  as  aforesaid,  of,  from  and  against  the  said  claim, 
and  shall  pay  all  costs  and  damages  that  the  said  J.  K.  may  incur 
or  be  put  to  in  consequence  of  such  claim,  then  this  obligation  to 
be  void,  otherwise  to  be  and  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  presence  of 

\Add  affidavit  of  justification  as  in  No.  134,  and  proof  or  acknow- 
ledi^ment  as  in  No.  135.] 


[  No.   171.  ] 

Order  staying  proceedings  to  make  a  case  or  hill  of  exceptions  to  Set 

aside  a  verdict. 

[Title  of  cfflHse.] 

On  motion  of  E.  F.,  attorney  for  the  plaintiff,  (or  defendant,) 
ordered,  that  all  proceedings  upon  the  verdict  entered  in  this  cause 
\}C  stayed,  until  a  bill  of  exceptions  (or  case)  is  made  and  filed. 

[This  order  is  to  be  entered  in  the  minutes  of  the  court  at  the  trial, 
a?id  a  copy  served  upon  the  opposite  attorney.) 


PRACTICAL    FORMS.  &15 

[  No.  172.  ] 
The  like  upon  trial  by  a  judge,  without  a  jury. 

[Title  of  cause.] 

On  motion  of  E.  F.,  attorney  for  the  plaintiff,  (or  defendant,) 
ordered,  that  all  proceedings  upon  the  judgment  entered  in  this 
cause  be  stayed,  until  a  case  (or  bill  of  exceptions)  is  made  and 
filed. 

{To  he  entered  and  served  same  as  last  order.) 


[  No.  173.  ] 

The  like  upon  trial  by  referees. 

[Title  of  cause.] 

Let  all  proceedings  upon  the  judgment  entered  upon  the  report 
of  referees  in  this  cause  be  stayed,  until  a  case  is  made  and  filed. 

Dated,  &c. 

J.  N.,  Justice  Sup.  C't. 

{This  order  is  obtained  from  a  judge  at  chambers,  and  a  copy 
served  upon  the  opposite  attorney.) 


[  No.  174.  ] 
Affidavit  to  procure  order  to  file  complaint. 

[Title  of  cause.] 

County  of  Yates. — C.  D.,  defendant  in  this  action,  (or  E.  F.,  the 
attorney  for  the  defendant,)  being  sworn,  says  that  he  was  (or  that 
the  defendant  was)  served  with  a  copy  summons  in  this  action,  on 
the  tenth  day  of  September  last,  (or  instant,)  and  that  the  com- 
plaint in  said  action  has  not  been  filed  with  the  clerk  of  this  court. 

Sworn,  &c. 

CD. 


516  PRACTICAL   FORMS. 

[  No.  175.  ] 

Certificate  of  clerk  of  county  where  action  is  triable,  annexed. 

[Title  of  cause.] 

I  certify  that  no  complaint  in  this  action  has  been  filed  in  my 
office. 


Dated,  &c. 


J.  N.,  Clerk  of  Yates  county. 


[  No.  176.  ] 
Order  to  file  complaint. 

[Title  of  cause.] 

It  satisfactorily  appearing  that  the  complaint  in  this  action  has 
not  been  filed,  I  do  hereby  order  that  the  plaintiff  file  the  same  in 
the  office  of  the  clerk  of  this  court,  in  the  county  of  Yates,  within 
(ten)  days  from  the  service  of  this  order,  or  he  will  be  deemed  to 
have  abandoned  the  same. 

Dated,  &c. 

R.  P.,  Justice  Sup.  C't. 

{An  affidavit,  Sfc,  and  order  for  filing  any  other  pleading,  can 
easily  be  framed  from  the  above. 


[  No.  177.  ] 

Undertaking  upon  answer  of  title  in  Justices^  Court. 

In  Justices'  Court. 

A.  B.,  Plaintiff,     ) 

agt.  >  Before  James  Jackson,  justice  of  the  peace. 

C.  D.,  Defe7idant.  ) 

Whereas,  the  defendant  in  this  action  has  put  in  an  answer 
thereto,  by  reason  whereof  the  title  to  real  property  will  come  in 
question  on  the  trial  thereof.  Now  therefore,  we,  E.  F.,  of  the 
town  of  Greene,  in  the  county  of  Chenango,  farmer,  and  G.  H.,  of 
the  town  of  Oxford,  in  said  county,  grocer,  undertake  that  if  the 
plaintiff  in  said  action  shall,  within  thirty  days  hereafter,  deposite 


I 


PRACTICAL   FORMS.  517 

with  the  justice  before  whom  said  action  is  pending  (or  with  James 
Jackson,  the  justice,)  a  summons  and  complaint  in  an  action  in  the 
Supreme  Court  for  the  same  cause,  the  defendant  will,  within  ten 
days  after  such  deposite,  give  to  the  said  plaintiff  an  admission 
in  writing  of  the  service  thereof.* 

Dated,  &c. 

E.  F. 

G.  H. 


[  No.  178.  ] 

Approval  by  justice  endorsed. 

I  hereby  approve  of  the  within  undertaking,  and  of  the  sufficiency 
of  the  sureties  therein. 

J.  J.  justice. 


[  No.  179.  ] 

The  like  in  an  action  in  which  the  defendant  is  arrested. 

(Like  No.  177  to  the  *  j  then  add)  and  that  the  said  defendant 
will,  at  all  times,  render  himself  amenable  to  the  process  of  the 
court,   during  the   pendency  of  the  action,  and  to  such  as  may  be 
issued  to  enforce  the  judgment  therein. 
Dated,  Sec. 

E.  F. 
G.  H. 


I 


INDEX  TO  THE  PRACTICE. 


I 


ABATEMENT, 

What  it  is,  21. 

Effect  of  on  the  action,  21. 

Death  of  sole  plaintiff,  21. 

Death  of  part}'  after  verdict,  no,  21. 

Death  of  sole  defendant,  22. 

Death  of  one  of  several  plaintiffs,  22. 

Death  of  one  of  several  defendants,  22. 

Affidavit  to  revive,  23, 

Motion  to  revive,  23. 

Motion,  who  may  make,  23. 

Motion  when  made,  23. 

Motion  how  made,  23. 

Death  of  party  after  judgment,  who  may  bring  appeal,  295. 

ABSENT,  NON-RESIDENT  AND  CONCEALED  DEF'TS. 
Attachments  against,  89. 
When  it  may  be  applied  .'"or,  90, 

and  see  title  "Attachment." 
How  served  with  summons,  113. 
Affidavit  to  obtain  order,   113. 
Order  for  publication,   114. 
Summons  how  long  published,    115. 
In  what  papers,   114. 

Service  of  summons,  notwithstanding  publication,    115. 
Proof  of  publication  of  summons,   115. 
Form  of  summons  against,   115. 
Demand  of  copy  complaint  by,   116. 
Obtaining  copy  complaint  by,   116. 
Proof  ot  service  of  suaiinoas  against,   118. 


520  INDEX   TO   PRACTICE. 

ABSENT  &c.,  DEFENDANTS, 

Application  for  judgment  against,   121. 

Proof  to  be  furnished,  122. 
ACKNOWLEDGMENT, 

Of  undertaking,  257. 
ACCOUNT, 

Not  necessary  to  be  set  out  in  pleading,  38. 

Items  of,  how  obtained,  130. 
ACTIONS, 

Local  where  triable,  25. 

Which  must  be  tried  where  the  subject  is,  25. 

Where  the  cause  of  action  arose,  27. 

Where  parties  or  some  of  them  reside,  29. 
ACTION, 

Civil,  what  are,  4. 

Criminal  what  are,  5. 

Parties  to,  9,  16. 

Abated,  how  continued,  21. 

How  continued  after  lapse  of  one  year,  24. 

Joinder  of  actions,  45. 

Actions  that  may  be  joined,  46. 

Actions  that  may  not  be  joined,  47. 

Commencement  of,  49. 

Insufficient  cause  of  ground  of  demurrer,  138. 

Trial  of,  and  subsequent  proceedings,  160. 

Costs  in,  203. 

For  foreclosure  of  mortgage,  315. 

Action  for  partition  of  lands,  333. 

For  divorce,  340. 
ADDITIONAL 

Allowance  of  costs,  216. 
ADJOURNMENT 

Of  reference,  192. 
ADJUSTING, 

Costs,  219, 

Motion  for  re-adjustment,  220. 
ADMINISTRATOR, 

When  may  be  plaintiff,  10. 

When  should  be  defendant,  16. 

Action  abated,  should  be  continued  by,  21. 


I 


INDEX  TO  PRACTICE.  521 

ADMINISTRATOR 

Costs  in  actions  by  and  against,  207. 

Motion  for  costs  against,  211. 
ADULTERY, 

Action  for  divorce  on  account  of,  340. 
ADVERTISEMENT, 

Of  summons  against  non-resident  or  concealed  deft,   115. 

Of  sale  of  mortgaged  premises,  329. 
AFFIDAVIT. 

To  obtain  order  for  publication  against  absent  deft,  13- 

To  obtain  order  for  arrest,  57. 

To  obtain  delivery  of  personal  property,  72. 

To  obtain  injunction,  84. 

To  obtain   attachment  against  non-resident  or  concealed 
defendant,  90. 

Of  service  of  summons,  118. 

Of  publication  of  summons,  118. 

For  motion  for  judgment  in  sham  answers,  150. 

Of  merits,  to  prevent  inquest,  172. 

For  reference,  188. 

To  oppose  motion,  188. 

Annexed  to  undertaking,  278. 

For  order  of  reference  in  foreclosure  suit,  324. 

Of  no  absent  defendants,  324. 

Of  no  answer,  324. 

Of  filing  lis  pendens,  326. 

Of  facts  to  obtain  order  for  judgment  debtor  to  appear  and 
answer,  352. 

To  obtain  warrant  to  arrest  judgment  debtor,  355, 

For  special  motions,  376. 
AGENT, 

When  may  sue,  9. 

Or  be  sued,  16. 

When  may  verify  complaint,  107. 
ALIMONY, 

Application  for,  344. 
ALLOWANCE, 

Of  additional  costs,  216. 

How  computed,  217. 

How  ascertained,  213. 


522  INDEX    TO    PRACTICE. 

AMENDMENT, 

Of  pleading,  39. 

Upon  what  terms,  39. 

In  genera],  39. 

Before  judgment,  41. 

In  what  cases,  41. 

How  allowed,  41. 

Motion  for  leave  to  amend,  41. 

Of  course,  42. 

Upon  the  trial,  42. 

By  adding  a  party,  42. 

Must  pay  costs,  42. 

Of  summons,  43. 

Of  complaint,  108. 

Plaintiff  has  20  days  after  answer,  103. 

After  demurrer,  103. 

OF  ANSWER, 

Defendant  has  20  days  after  reply,  152. 
After  demurrer,  152. 

AMOUNT, 

Of  damages  recoverable,  199. 
Of  costs  recoverable,  213. 

ANSWER, 

What  it  is,  145. 

General  rules  in  regard  to,  145. 

What  it  should  contain,  145. 

General  or  specific  denial,  146. 

Setting  up  new  matter,  147. 

Allegations  in  complaint  not  controverted  are  admitted,  148. 

When  it  should  be  verified,  149. 

Form  of  verification  of,  149. 

Effect  of  verifying,  150. 

Sham  answers,  150. 

Motion  for  judgment  on  account  of,  150. 

Affidavit  for  motion,  150. 

Must  be  folioed,  150. 

Amendment  of,  see  title  "amendments," 

Motion  to  strike  out  irrelevant  or  redundant  matter  in,  151. 

]\lolion,  when  made.  150. 

Motion  to  strike  out  sham,  150. 


^ 


INDEX    TO    PRACTICE.  523 

ANSWER. 

Enlarging  time  to  answer,  151. 
Must  be  served  in  20  days,  151. 
Answer  after  demurrer  overruled,  152. 
Answer  in  foreclosure  suits,  323. 
Answer  in  partition  suits,  337. 
Answer  in  divorce  suits,  343. 

APPEAL, 

To  Supreme  Court  from  an  Inferior  Court,  251. 

What  it  is,  251. 

Substitution  for  writ  of  error,  252. 

When  taken,  252. 

In  two  years  from  entering  of  judgment,  252. 

By  whom  taken,  252. 
L  From  what  judgments,  253. 

I  Cases  arising  in  a  justices'  court,  253. 

'  Parties,  how  called,  254. 

Notice  of  appeal,  254. 

Service  of  notice,  255. 

The  undertaking-,  or  deposite,  255-261. 

May  be  waived  by  consent,  255. 

Undertaking  necessary  to  stay  execution,  256. 

Undertaking  must  be  proved  or  acknowledged,  257. 

Undertaking  need  not  be  executed  by  appellant,  257. 

Undertaking  need  not  be  approved,  257. 

Excepting  to  sureties,  559. 

Affidavit  annexed  to  undertaking,  259. 

Serving  copy  undertaking,  ki59. 

Sureties  justifying,  260. 

Other  sureties,  260, 

Manner  of  justifying,  261. 

Examination  to  be  in  writing,  and  annexed,  261. 

To  allownnce  of  sufficiency,  261. 

Qualifications  of  sureties,  261. 
\  Perfected,  stays  proceedings  in  the  court  below,  258. 

;;  Filing  undertaking,  261. 

'  Transmitting  judgment  roll,  262. 

;■  When  to  be  transmitted,  262. 

Return  where  filed,  263. 


524  INDEX    TO    PRACTICE. 

APPEAL 

Obtaining  further  return,  264. 
Preparing  case,  264. 
Printing  case,  265. 
Points,  265. 
Serving  case,  265. 

Enlarging  time  to  serve  do,  266.  '1 

Notice  of  argument  of  do,  266. 
Where  appeal  must  be  heard,  266. 
Note  of  issue,  266. 
When  filed,  267. 
Making  up  calendar,  267. 
Argument,  267. 
Taking  default,  268. 

Counsel  must  endorse  name  on  papers,  268. 
Decision,  263. 
Costs,  270. 

Entering  judgment,  270. 
Serving  copy  rule,  270. 
Rule  where  entered,  270. 
Interest  on  judgment  of  court  below,  270. 
APPEAL 

From  judgment  of  single  judge  oe  repobt  of  befesees, 

to  general  term,  27l 
In  what  case,  271, 
Practice  changed,  27L 
Appeal  when  taken,  272. 
Within  what  time,  272. 
Who  may  appeal,  272. 
Parties  how  called,  272. 
From  what  judgment,  273. 
From  what  orders,  273. 
Orders  made  out  of  court,  274. 
Notice  of  appeal,  274. 
What  to  contain,  274. 
Service  of  notice,  274. 
Undertaking,  275. 
Deposite,  275-28L 
May  be  waived  by  consent,  275. 
When  necessary  to  stay  execution,  275. 
Must  be  proved  or  acknowledged,  277. 


INDEX    TO    PRACTICE.  525 

Need  not  be  executed  by  appellant,  277. 

Need  not  be  approved,  277. 

Affidavit  annexed,  278. 

Serving  copy,  279. 

Excepting  to  sureties,  279, 

Sureties  justifying,  279. 

Other  sureties,  280. 

Manner  of  justifying,  280. 

Examination  to  be  in  writing,  and  annexed  to  allowance 

of  sufficiency.  281. 
Qualifications  of  sureties,  281. 
Filing  undertaking,  281. 
Not  necessary  to  transmit  judgment  roll,  282. 
Preparing  case,  282. 
Printing  case  and  points,  283. 
Serving  case,  283. 
Enlarging  time  to  serve,  283. 
Notice  of  argument,  284. 
Where  appeal  mus^be  heard,  284. 
Note  of  issue,  284. 
Where  filed,  284. 
Calendar,  284. 
Argument,  285. 
Taking  default,  285. 

Counsel  must  endorse  name  on  papers,  285. 
Decision,  286. 
Costs,  286. 

Entering  judgment,  286. 
Serving  rule,  286. 
Rule  when  entered,  286. 
Where  entered,  286. 
APPEAL  TO  THE  COURT  OF  APPEALS. 
Jurisdiction  of  court  of,  289. 
From  judgments,  289. 
From  orders,  291. 

Within  what  time  appeal  must  be  made,  293. 
Who  may  bring  appeal,  294. 
In  case  of  death,  295. 
la  actions  concerning  real  property,  295. 
\  By  attorney-general,  295. 

By  husband  and  wife,  295. 


^ 


520  INDEX  TO  PRACTICE. 

APPEAL  TO  THE  COURT  OF  APPEALS. 

By  survivors,  295. 

Joinder  of  parties  in,  295. 

Excuse  for  not  joining,  295. 

Rule  and  service,  296. 

Default,  297. 

Misjoinder,  297. 

Against  whom  brought,  297. 

Attorney,  298. 

Notice  of  appeal,  298. 

Service,  298. 

Undertaking,  298. 

Deposite,299. 

Must  be  at  least  two  sureties,  299. 

Security  may  be  waived,  299. 

Undertaking  necessary  to  stay  execution,  299. 

Need  not  be  approved,  301. 

Must  be  proved  or  acknowledged,  301. 

Affidavit  to  be  annexed,  302. 

Serving  copy  undertaking,  302. 

Excepting  to  sureties,   303. 

Sureties  justifying,  303. 

Other  sureties,  304. 

Manner  of  justifying,  304. 

Examination  to  be  annexed  to  allowance,  305. 

Qualifications  of  sureties,  305. 

Filing  undertaking,  305. 

Transmitting  judgment  roll,  305. 

When  to  be  transmitted,  306. 

Obtaining  further  return,  306. 

Making  case,  307. 

Printing  case  and  points,  307. 

Serving  case,  308. 

Notice  of  argument,  308. 

Note  of  issue,  308, 

Calendar  how  made  up,  309. 

Argument  of  appeal,  309. 

Extended  discussion  of  facts  will  not  be  heard,  309. 

No  ex  parte  argument,  309. 

May  take  judgment  by  default,  310. 

Remittitur  to  be  retained  10  days  incase  of  default,  310, 


INDEX   TO   PRACTICE.  527 

APPEAL  TO  THE  COURT  OF  APPEALS. 

Default  may  be  set  aside,  810. 

Submitting  case  on  printed  arguments,  J310. 

Decision,  311. 

Remittitur,  311. 

Costs,  312. 

Execution,  313. 
APPEAL, 

From  ordek,  to  general  term  of  Suprebie  Coitrv,  383. 

From  what  orders  may  be  taken,  3S3. 

Must  have  been  made  at  special  term  or  single  judge,  383. 

Ex  parte  orders  not  appealable,  383. 

Order  must  be  entered,  384. 

Entry  of,  may  be  compelled,  384. 

When  to  be  taken,  384. 

Notice  of  must  specify  what  part  appealed  from  if  not  the 
whole,  385. 

Service  of  notice,  385. 

No  security  required,  385. 

Papers  to  be  used  on,  386. 

Notice  of  hearing,  387. 

Argument  of,  387. 

Default,  388. 

Decision,  388. 

Rule  and  service,  3SS. 

Costs,  388.  , 

When  payable,  389. 

How  collected,  389. 
APPELLANT. 

To  make  case,  appeal  from  inferior  courts,  264, 

In  Supreme  Court,  282. 

In  Court  of  Appeals,  307. 
APPZARANCE, 

Notice  of  retainer  shall  be,  392. 

At  trial  failure  of,   176. 
AUG  U:\iENT,  * 

Notice  of,  206. 

Of  appeal  from  inferior  courts,  267.  ' 

In  Supreme  court,  284. 

In  Court  of  Appeals,  309. 

On  appeals  from  orders,  387. 


528  INDEX    TO    PRACTICE. 

APPLICATION, 

For  judgment,  where  made,  121. 

In  foreclosure  suit,  826. 

In  partition  suit,  338. 

In  divorce  cases.  344. 
ASSIGNEES, 

Actions  b}'-,  10. 

Costs  against,  212. 
ATTACHMENT, 

Against   foreign   corporations,  non-resident,   absconding 
and  concealed  defendant,  89. 

When  applied  for,  89. 

Who  may  grant,  90.     r 

Affidavit  for,  90. 

Security  upon,  91. 

How  executed,  92. 

Perishable  property,  93. 

Property  claimed  by  another,  93. 

Suits  by  sheriff,  93. 

Satisfying  judgments  on,  94. 

On  judgment  for  defendant,  95. 

Motion  to  discharge,  95. 

Security  on,  95. 

Filing  warrant,  95. 
ARREST  AND  BAIL, 

See  title  "Bail." 
ASSESSMENT, 

By  clerk,  120. 

Report  of,   123. 
ATTORNEY,  \ 

When  may  verify  pleadings,  106. 

What,  may  bring  appeal,  298. 
ATTORNEY  GENERAL, 

Appeal  by,  295. 
AWARDING, 

Judgment,   197. 
BAIL,  53. 

In  actions  e.r  delicto,  54. 

In  actions  for  fines  and  penalties,  54. 

In  actions  to  recover  personal  property,  65, 

\ 


INDEX   TO   PRACTICE. 


529 


BAIL, 


BILL, 


For  fraud,  55. 

When  defendant  has  removed  property,  56. 

Obtaining  order  for  arrest,  57. 

Affidavit  for,  57. 

Must  state  cause  of  action,  57. 

By  whom  sworn  to,  58. 

Order  when  made,  58. 

Contents  of  order,  58. 

The  undertaking,  59. 

Amount  of  bail  to  be  fixed,  60. 

Arresting  defendant,  60. 

Plaintiff  may  limit  time  for  arresting  defendant,  6L 

Giving  bail,  6L 

Undertaking  upon,  61. 

Qualifications  of  bail,  62. 

Exception  to  bail,  62. 

Justifying  bail,  63. 

Other  bail,  64. 

Manner  of  justifying,  65. 

Filing  undertaking,  66. 

Liability  of,  67. 

Surrender  of,  68. 

Vacating  order  of  arrest,  70. 


Particulars  of,  how  obtained,  130. 

Of  exceptions,  see  "  Exceptions  bill  of." 

Of  receiver,  361. 


BOND, 

BOOKS, 

Obtaining  inspection  of,  128. 
CALENDAR, 

For  trial  of  issues  of  fact,  172. 

Of  law,  172. 

Appeals  from  inferior  courts,  267. 

In  Supreme  court,  284. 

How  made  up,  in  Court  of  Appeals,  309. 


CASE, 


Opening  of  to  the  jury,  179. 
Summing  up  of,  182. 
To  move  to  set  aside  verdict,  234. 
34 


580  INDEX   TO  PRACTICE. 

CASE, 

Staying  proceedings  to  make,  235. 

Preparing  case,  235. 

Amendments  to,  settling  and  filing,  235. 

Turning  into  bill  of  exceptions,  236. 

Reserved  for  argument  or  further  consideration,  240. 

To  set  aside  report  of  referees,  241. 

Appeals  from  inferior  courts,  265. 

In  Supreme, court,  283. 

Service  of,  283. 

Turning  into  special  verdict  or  bill  of  exceptions,  287. 

Dismissing  appeal  for  non-service  of,  303. 

For  appeal,  in  Court  of  Appeals,  308. 

Submitting  on  printed  arguments  in  Court  of  Appeals,  310. 
CERTIFICATE, 

Of  clerk  on  deposite,  in  lieu  of  bail,  69. 

Of  judge  that  title  came  in  question  on  trial,  206. 

Of  probable  cause  for  appealing,  in  cases  arising  in  justi- 
ces courts,  253. 
CHARGE, 

Of  judge  to  jury,  182. 
CHANGE, 

Of  parties,  21. 

Of  place  of  trial  in  local  actions,  27. 

In  transitory,  30. 

In  what  cases,  31. 

How  obtained,  32. 

Ground  for,  32. 

"When  made,  34. 
CLERKS  OF  COURTS, 

To  receive  deposit,  70. 

To  enter  judgments,  200. 

To  adjust  costs,  219. 

Fees  of,  219. 
COMMENCEMENT, 

Of  suit,  49. 

What  is,  51. 

To  save  statute  of  limitations,  52. 
COMMISSION, 

To  examine  witnesses,  162.  J 


J 


INDEX   TO    PKACTICE.  531 

CAUSE  OF  ACTION, 

How  stated  in  complaint,  103. 

CLAIM, 

And  delivery  of  personal  property,  see  title  "  Personal 

Property." 
CIRCUIT, 

Costs  of,  on  putting  off  cause,  213, 
CIVIL  ACTIONS, 

What  are,  4. 
COMPELLING 

Entry  of  order,  373. 
COMPLAINT, 

Designating  im,proper  county  for  trial,  30. 

What  it  is,  99. 

"General  rules  concerning,  99. 

Contents  of,  103. 

Subscribing,  106. 

Verifying,  106. 

Who  may  verify,  107. 

Amending,  108. 

Supplemental  complaint,  103. 

Filing,  109. 

Serving,  110. 

When  proper,  110. 

Obtaining  copy  of,  125. 

Motion  to  strike  out  irrelevant  matter  in,  132. 

In  foreclosure  suit,  318^ 

For  partition,  335. 

In  action  for  divorce,  341. 
COMPROMISE, 

Offer  of  defendant  to,  125. 

Notice  of,  125. 

Acceptance  of  offer,  128. 

Non-acceptance,  128. 
CONCEALED  DEFENDANT. 

To  save  statute  limitations,  52. 

Service  of  summons  on,  115. 
CONFIRMING 

Report  of  sale  in  foreclosure  suit,  331. 
CONSTRUCTION 
Of  pleadings,  40. 


532  INDEX  TO  practice; 

CORPORATION, 

Foreign,  attachments  against,  89. 

see  title  "  Attachments." 

Service  of  summons  on,  112. 
COPY  PLEADINGS 

To  be  furnished  court,  171. 
COPY  ACCOUNT, 

Procuring  of,  130. 

see    "  PARTICtJLARS,    BILL   OF," 

CRIMINAL  ACTIONS, 
What  are,  4. 

COSTS. 

Notice  of  adjustment  to  be  given,  when,  199. 

Items  must  be  served,  199. 

Disbursements  to  be  verified,  200. 

Right  to  oppose,  200. 

Duty  of  clerk  upon  adjustment,  200. 

Fee  bill  abolished,  203. 

Plaintiff's  costs,  204. 

In  real  actions,   entitled  to  cost  if  plaintiff  recovers  any 

thing,  204. 
Where  title  comes  in  question,  204. 
Certificate  of  judge  necessary,  206. 
As  to  actions  to  recover  personal  property*  206. 
In  actions  by  people,  207. 
In  actions  commenced   in  justice's  court,   and  answer  of 

title  put  in,  207, 
In  actions  upon  accounts  over  four  hundred  dollars,  207. 
In  actions  for  assault,  battery,  &c.,  207.. 
Against  executors,  207. 
Actions  on  promissory  notes,  208. 
Defendant's  costs,  20S, 
Costs  in  discretion  of  court,  209. 
Against  infant  plaintiff,  209. 
Actions  by  people,  211. 
Against  assignee  of  plaintiff,  212. 
On  review  in  special  proceedings,  212. 
Of  putting  off  trial,  213. 
Of  motions,  213. 
Amount  recoverable,  213. 
To  the  plaintiff,  213. 


INDEX    TO    PRACTICE.  533 

COSTS, 

To  the  defendant,  214. 

On  appeal,  214. 

Costs  on  appeals  fron\  inferior  courts,  214. 

In  Supreme  Court,  214. 

In  Court  of  Appeals,  214. 

Additional  allowance,  216, 

Per  cenlage,  how  computed,  217. 

How  ascertained,  218. 

Interest  on  verdict  may  be  allowed  as  costs,  218. 

On  settlement  of  action,  219. 

Entering  in  judgment,  219. 

Adjusting  costs,  219, 

Motion  to  re-adjust,  220. 

In  foreclosure  suit,  326. 

In  partition  suit,  338. 

In  actions  for  divorce,  344. 

In  proceedings  against  judgment  debtor,  364. 

COURT, 

Trial  by,  175, 

Costs  in  discretion  of,  209. 
COURT  OF  APPEALS, 

See  "  appeals  to  Court  of  Appeals." 
COURTS  OF  JUSTICES  OF  THE  PEACE, 

See  "Justices  of  the  Peace." 

COUNSEL, 

Taking  default  to  endorse  his  name  on  papers,  268,  285. 

DAMAGES, 

Amount  of  recoverable,  199. 
DEATH, 

Of  one  of  several  parties,  13. 

Of  sole  plaintifT,   13,  21. 

Of  sole  defendant,  21. 

Effect  of,  on  the  action,  21. 
DEFAULT, 

Party  noticing  may  take  judgment  by,  in  appeals  from  in- 
ferior courts,  268. 

In  Supreme  Court,  285. 

In  Court  of  Appeals,  310. 

Setting  aside  in  Court  of  Appeals,  310. 

In  appeals  from  orders.  388, 

On  motions,  379. 


1 


C2  1  INDEX   TO  PRACTICE, 


DEFENDANT, 

Who  must  be,  IG. 

Several  defendants,  16,  22. 

Married  women,  17,  I 

Corporators  need  not  be  joined,  17. 

Dormant  partners  need  not  be  joined,  17. 

Persons  severally  liable,  17. 

Infant  defendant,  17. 

In  actions,  ex  delicto,  18. 

Parties  to  bills  of  exchange  and  promissory  notes,  18, 

Misjoinder  of,  19. 

Nonjoinder  of,  19. 

Effect  of  nonjoinder  of,  19. 

Misjoinder  and  nonjoinder,  how  taken  advantage  of,  19. 

Effect  of  misjoinder  of,  20. 

Death  of  sole,  21. 

Death  of  one  of  several,  22. 

Transfer  of  interest  by,  22. 

Proceedings  on  part  of,  before  answer,  125. 

Costs  receivable  by,  210. 

In  action  for  foreclosure  of  mortgage,  316. 

DEBTOR, 

Judgment,  proceedings  against,  on  return  of  execution  un- 
satisfied, 346. 

Proceedings    upon    issuing  and   before  return,    see   title 
"  Judgment  Debtor." 
DECISION, 

Of  court,  trial  by,  177. 

On  appeal,  2S6. 

In  Court  of  Appeals,  311. 

On  appeals  from  inferior  courts,  268. 

On  appeals  from  orders,  388. 

DEED, 

Topurchaser  on  foreclosure  sale,  331. 
DEFENCE  TO  SUIT, 

Proceedings  by  defendant  previous  to  putting  in,  125, 

Joinder  of  defences,  145. 

Opening  of  to  jury,  181. 
DEMAND, 

Of  copy  of  complaint,  125. 


INDEX   TO    PRACTICE.  535 


DEMAND, 

Of  bill  of  particulars,  130. 

That  trial  be  had  in  proper  county,  30. 
DEMURRER, 

Its  nature  and  uses,  134. 

Grounds  of,  136. 

Want  of  jurisdiction,  136. 

Want  of  legal  capacity  to  sue,  137. 

Another  action  pending,  137. 

Defect  of  parties,  138. 

Misjoinder  of  parties,  13S. 

Insufficient  cause  of  action,  133. 

Drawing  demurrer,  139. 

Filing,  141. 

Serving,  141. 

Enlarging  time  to  demur,  142. 

Frivolous  demurrer,  143. 

To  answer,  152. 

To  reply,  158. 

To  evidence,  246. 

How  drawn  up,  246. 
DEPOSIT 

In  lieu  of  bail,  69. 

In  lieu  of  undertaking,  275-281. 
DETERMINING 

Controversy  as  to  parties,  20. 
DISMISSING  COMPLAINT,  198. 

For  not  bringing  cause  to  trial,  184. 

The  like  before  referees,  191. 

Appeal  in  Court  of  Appeals,  306-308. 

DIVISION 

Of  executions,  221. 

DOCKETING 

Judgment,  201,  202. 
DOCUMENTS, 

Production  of,  128. 
DIVORCE, 

Action  for,  340. 

How  commenced,  340. 

Parties  to,  340. 

Summons  and  complaint,  341. 


536  INDEX   TO    PRACTICE. 

DIVORCE 

What  to  allege,  341. 

Must  be  verified,  341. 

Reference  to  take  proofs,  342. 

Answer,  343. 

Issue  how  formed,  343. 

Answer,  what  may  contain,  343 

Hearing  and  judgment,  344. 

Costs  in,  344. 
EJECTMENT, 

Place  of  trial  in,  26. 

How  changed,  32. 

Ground  for,  32. 
ENDORSING 

On   papers   on   taking   default  in  appeals    from  inferio? 
courts,  26S. 

In  Supreme  Court,  285. 

On  motions  by  default,  379. 

Attorneys'  residence  on  papers^,  392. 
ENTERING  COSTS 

Verdict,  184. 

In  judgment,  200. 

Judgment  in  appeals  from  inferior  courts,  270. 

In  Supreme  Court,  286. 

Upon  remittitur  from  court  of  appeals,  311. 
ENTITLING 

Bill  of  exceptions,  see  title  "  Exceptions,  bill  of." 
ERROR  WRIT  OF, 

Appeal  substituted  for,  252. 

ERROR 

In  pleading  when  to  be  disregarded,  43. 

When  in  summons,  43. 
EVIDENCE, 

Motion  to  produce  documents,  172, 

Mode  of  obtaining,  173. 

SubpcEna,  173. 

Demurrer  to,  246. 
EXAMINATION 

Of  writings,  162 


INDEX    TO    PRACTICE. 


537 


EXAMINATION  OF  WITNESSES, 
Upon  commission,  162. 
De  bene  esse,  163. 
Of  parties,  164. 
At  the  trial,  16S. 

Upon  order  of  judge  before  trial,  166. 
On  the  trial,  16S,  180. 
Of  judgment  debtor,  357. 
Of  witnesses,  358. 
Certifying  same,  359. 
EXCEPTING 

To  bail  on  arrest,  62. 

To  sureties  on  appeal  from  inferior  court,  257. 
To  Supreme  Court,  297. 
In  Court  of  Appeals,  303. 
EXCEPTIONS, 

Bill  of,  227. 

Mode  of  taking,  227. 

Grounds  of,  227. 

Staying  proceedings,  229. 

When  and  how  made  up,  231. 

Amendments  to,  232. 

How  settled,  232. 

When  and  where  filed,  233. 

Setting  aside  bill,  233. 
EXECUTION, 

Division  of,  221. 

Against  property,  221. 

Against  person,  222. 

For  delivery  af  property,  223. 

When  may  issue,  223. 

After  five  years  how  to  issue,  224, 

How  directed,  224. 

When  returnable,  225. 

Where  judgment  does  not  require  payment  of  money  or 
delivery  of  property,  225. 

On  judgment  upon  remittitur  from  Court  of  Appeals,  313. 

For  deficiency  in  foreclosure  suit,  332. 
Report    must   be    filed    before    execution    for    deficiency 
issues,  332. 


538  INDEX   TO  PRACTICE. 

EXECUTION, 

Must  be  returned  before  order  for  debtor  to  appear  and 
answer,  349. 
EX  PARTE, 

Not  heard  in  appeals  from  inferior  courts,  268. 

Orders  not  appealable,  383. 

Nor  in  Court  of  Appeals,  309. 

Nor  in  appeals  from  judgments  in  Supreme  Court,  285, 
EX  DELICTO, 

Plaintiffs  in  actions  of,  14. 

Defendants,  18. 

Bail  in,  54. 
EXECUTORS, 

When  may  sue  in  their  own  name,  10. 

When  may  be  sued  as  such,  16. 

Costs  in  action  by  and  against,  207. 

Motion  for  costs  against,  211. 


Of  clerk,  219. 


FEES, 

FACT, 

Issue  of,  how  tried,  170. 

FAILURE  TO  ANSWER, 

Judgment  on,  120. 

FOLIO, 

Complaint  to  be,  109. 
■  Answer,  150. 
To  be  printed  on  case,  282. 
FILING 

Complaint,  109. 

Demurrer,  141. 
FORECLOSURE  OF  MORTGAGE. 
Place  of  trial  in,  26. 
Action  for,  315. 
Object  of,  316. 
How  commenced,  316. 
Parties  to,  316. 
Plaintiff,  316. 
Defendants,  317. 
Summons  in,  318. 
Complaint  in,  318. 

Must  state  whole  relief  claimed,  319. 
Service  of,  321. 


INDEX  TO  PRACTICE.  539 

FORECLOSURE  OF  MORTGAGE. 
Notice  of  object  of  suit,  321. 
Lis  pendens,  322. 

Proceedings  on  receipt  of  answer,  323. 
Where  no  answer  is  put  in,  323. 
Reference,  324. 
Affidavit  for,  324. 
Order  for,  325. 
Judgment  for,  325. 
Affidavit  for,  326. 

Application  for  judgment  where  to  be  made,  326. 
The  judgment,  323. 
What  to  contain,  327. 
Judgment  roll,  328.  i^ 

Sale,  328. 

Time  and  place  of,  329. 
Notice  of,  329. 
How  published,  329, 
Conditions  of,  330. 
How  conducted,  330. 
Deed,  331, 
Report  of  sale,  331. 
Confirming  report,  331. 
Execution  for  deficiency,  332. 
Report  must  first  be  filed,  332. 

FRIVOLOUS 

Demurrer,  see  title  "  Demurrer." 
FRAUD, 

Defendent  may  be  arrested  for,  55. 

FURTHER  RETURN 

May  be  procured,  on  appeal,  from  inferior  court,  264. 

On  appeal  to  Court  of  Appeals,  306. 
GENERAL  RULES 

Of  pleading,  35. 

In  respect  to  answer,  145. 
GUARDIAN 

For  infant  plaintiff,  how  appointed,  394. 

For  infant  defendant,  894. 

Who  may  apply,  394. 

Who  may  be,  395. 


540  INDEX    TO    PRACTICE. 

GUARDIAN. 

General  guardian,  or  officer  of  the  court,  395. 

Appointment  how  made,  395. 

Petition,  396. 

What  to  contain,  396. 

Order,  396. 

Filing,  396. 

Security,  396. 

Serving  copy  order,  397. 
GENERAL  VERDICT, 

What,  182. 
GROUNDS 

Of  demurrer,  136. 
HABITUAL  DRUNKARDS 

Service  of  summons  on,  112. 
HEARING.     See  "  Appeal," 

Before  referees,  19G. 

In  divorce  cases,  344. 
HUSBAND, 

Actions  by,  11. 

When  must  join  with  wife,  11. 

When  may  sue  for  injuries  to  child  or  servant,  11. 

Action  for  divorce  by,  340. 

May  question  legitimacy  of  children,  344. 

IDIOT, 

Suits  for  must  be  in  name  of  committee,  11. 

Service  of  summons  on,  112. 
INFANT, 

See  "  parties,"  12. 

Appointment  of  guardian  for,  see  title  "Guardian." 

Infant  defendant,  17. 

When  may  be  sued,  17. 

Service  of  summons  on,  112. 
INFERIOR  COURTS, 

Review  of  judgments  in  by  appeal,  see  title  "appeals  to 
the  Supreme  Court  from  an  inferior  court." 
INTEREST, 

How  recovered  on  verdict,  218. 

When  allowed  on  appeal  by  way  of  damages,  270. 
IRRELEVANT  MATTER  IN  PLEADING. 

Motion  to  c;trike  out  in  complaint,  132. 

In  answer,  151. 


INDEX   TO    PRACTICE.  541 

IRRELEVANT  MATTER  IN  PLEADING. 

In  a  reply,  154. 
INJUNCTION  BY  ORDER, 

Cases  in  whicli  allowed,  81. 

When  applied  for,  82. 

Upon  what  granted,  S3. 

Affidavit,  84. 

Security  upon,  85. 

Filing  undertaking,  86. 

Against  corporations,  86. 

Security  upon,  87. 

Motion  to  dissolve,  88. 
INQUEST, 

How  prevented,  171. 

Affidavit  of  merits,  172. 

When  may  he  taken,  174. 

Judgment  on  how  perfected,  175. 

Defendant  may  cross-examine  plaintiff's  witnesses,  175. 

Cannot  make  out  defence,  175. 

Plaintiff  may  be  non-suited  on,  175. 

Plaintiff  not  bound  to  wai^'e,  175. 

May  put  defendant  to  his  motion,  175. 
INQUIRY, 

Writ  of,  when,  123. 
ISSUE, 

Note  of  on  trial,  172. 

On  appeal  from  inferior  courts,  266. 
In  Supreme  Court,  284. 
In  Court  of  Appeals,  303. 
ISSUES, 

How  tried,  169. 

Preparation  for  trial  of,  see  "Trial  of  Issues.'* 

Of  law,  161. 

Of  fact,  161. 

Of  fact  how  tried,  170. 

Of  law  195. 

Note  of  on  trial  of  issue  of  law,  196. 

Furnishing  papers,  196. 

Argument,  196. 

Decision,  196. 

In  divorce  cases  how  made  up  and  tried,  343. 


542  INDEX   TO   PRACTICE. 

JOINDER  OF  ACTIONS,  see  "  Actions." 

Of  defences,  see  "  Defence  of  suit." 
JOINDER, 

Of  plaintiffs,  13. 

Consequence  of  not  jofning,  15. 

How  taken  advantage  of,  15. 

Of  defendants,  19. 

Consequence  of  not  joining,  20. 

How  taken  advantage  of,  20. 
JUDGMENTS, 

What  necessary  in  pleading,  38. 

What  appealable  from  county  courts,  253. 

From  Supreme  court  to  Court  of  Appeals,  289. 
JUDGMENT, 

On  failure  to  answer,  120. 

Application  for,  121. 

Manner  of  entering,  123. 

Where  made,  121. 

In  foreclosure  suit,  326. 

Partition  suit,  338. 

Divorce  case,  344. 

In  Court  of  Appeals,  311. 

On  appeal  from  inferior  courts,  270. 

In  Supreme    Court,  286. 

How  executed  when  does  not  require  payment  of  money 
or  delivery  of  property,  225. 

Generally,  what,  197. 

Awarding  judgment,  197. 

On  verdict,  184. 

Report  of  referees,  194. 

Trial  by  court,  197. 

May  be  for  or  against    one  of   several   plaintiffs'  or   de- 
fendants,  198. 

Dismissing  complaint,  198. 

Must  be  for  the  relief  demanded  if  complaint  is  not  an- 
swered, 199. 

Otherwise  if  answer  is  put  in,  199. 

In  actions  for  recovery  of  property,  199. 

For  return  and  damages,  199. 

Costs,  199. 


INDEX   TO    PRACTICE.  543 

JUDGMENT, 

How  adjusted,  200. 

Notice  to  be  given,  200. 

Eight  to  oppose,  200. 

Items  must  be  given,  200. 

Disbursements  to  be  verified,  200, 

Duty  of  clerk  upon  adjustment,  200. 

Must  be  inserted  in  entry  of  judgment,  200. 

Manner  of  entering  judgment,  200. 

Judgment  roll,  201. 

What  to  contain,  201. 

Where  filed,  201. 

Who  must  make  up,  201. 

Transcript,  202. 

Where  may  be  filed,  202. 

Judgment  lien  from  time  of  filing,  202. 
JUDGES, 

Charge  to  jury,  182. 
JURY, 

Trial  by,  178. 

How  drawn,  179. 

Challenges  of,  179. 
JUDGMENT  ROLL, 

How  made  up,  on  judgment  or  failure  to  answer,  124. 

On  judgment  after  trial  or  reference,  201. 

Who  made  up  by,  201. 

To  be  transmitted,  on  appeal  from  inferior  court,  262. 

In  Court  of  Appeals,  305. 

When  to  be  transmitted,  306. 

In  foreclos'ire  suit,  328. 
JUDGMENT  DEBTOR, 

Proceedings  against    after  return  of  execution   unsatis- 
iied,  346. 

Upon  what  judgments,  347. 

In  what  cases,  347. 

Must  be  judgments  for  payment  of  money  only,  347. 

May  be   upon  justices'  judgments,  after   transcripts  fil- 
ed, 348. 

Execution  must  be  returned,  349. 

Proceedings  upon  issuing  and  before  return,  365. 


544  INDEX   TO    PRACTICE. 

JUDGMENT  DEBTOR. 

Jurisdiction  in  cases  of,  349. 

When  execution  may  be  returned,  349. 

To  what  county  execution  must  have  been  issued,  350. 

Need  not  be  returned  as  to  all  defendants,  351. 

Proceedings  to  obtain  order,  351. 

Affidavit  of  facts,  352. 

Need  not  state  defendant  has  property,  353. 

Order  to  appear  and  ansvv^er,  354. 

May  be  before  judge  or  referee,  354. 

Referee  to  report  evidence  or  facts,  354. 

Duty  of  referee,  354. 

Order  forbidding  transfer  of  property,  354. 

When  should  be  made,  354. 

No  further  affidavit  necessary  to  obtain  order,  355. 

Warrant,  when  may  be  issued,  355. 

Affidavit  for,  355. 

Issuing  warrant,  356.  J 

Undertaking  on  arrest,  356. 

Service  of  orders,  357. 

Examination  of  debtor,  357. 

Of  witnesses,  358. 

Certifying  examination  by  referee,  359. 

Report  of  referee,  359.  5 

Order  to  apply  property,  360. 

Receiver,  361.  I 

Security  of,  361. 

Authority  of  receiver,  362. 

No  assignment  necessary,  364. 

Costs,  364. 
JUSTICE  OF  THE  PEACE, 

Practice  in  courts  of,  407. 

Jurisdiction  of,  407. 

In  actions  on  contract,  408. 

For  injuries,  408. 

For  penalties,  409. 

Actions  commenced  by  attachments,  409. 

On  bonds,  409. 

On  surety  bonds,  410. 

On  judgments,  410. 


INDEX    TO    PRACTICE.  545 

JUSTICE  OF  THE  PEACE, 

May  enter  judgment  on  confession,  410. 

Cannot  sue  where  people  are  parties,  except  for  penalties, 

411. 
Nor  where  title  to  lands  come  in  question,  411. 
Nor  for  assault  and  battery,  411. 
False  imprisonment,  411. 
Libel,  slander,  &c.,  411. 
Manner  of  commencing  suits  in,  412. 
Pleadings  in,  412. 
Complaint  and  answer,  412. 
Demurrer,  414. 
Grounds  of,  414. 
How  put  in,  415. 
Judgment  on  demurrer,  416. 
Proceedings  where  defendant  does  not  appear  and  answer, 

417. 
Action  on  defence  founded  on  an  account,  417. 
Pleadings  to  be  entered  and  filed,  418. 
Title  coming  in  question,  418. 
May  arise  on  pleadings,  418. 
On  trial,  418. 
Answer  of  title,  418. 
What  and  when  put  in,  419. 
Undertaking,  419. 
Must  have  one  surety,  420. 
Condition  of,  420. 
Must  be  approved,  420. 
Approval  to  be  endorsed,  420. 
Action  to  be  discontinued,  420. 
Each  party  to  pay  his  own  costs,  420. 
May  be  collected  by  execution,  420. 
If  answer  of  title  not  put  in,  defendant  cannot  afterwards 

draw  title  in  question,  420. 
When  title  comes  in  question  on  the  trial,  420. 
Suit  in  Supreme  Court,  421. 
Within  what  time,  421. 
How  prosecuted,  422. 
Costs,  422. 

Obtaining  particulars  of  an  account,  423. 
35 


546  INDEX   TO   PRACTICE. 

JUSTICE  OF  THE  PEACE, 

When  and  how  obtained,  423. 

Of  variances  in  pleadings,  423. 

Of  amendments  of  pleadings,  424. 

Terms  of  amendments,  425. 

Transcripts,  426. 

Executions,  426. 
JUSTICES'  COURTS, 

Appeals  from  county  courts  in  cases  arising  in,  253. 
JURISDICTION, 

Want  of,  ground  of  demurrer  to  complaint,  136. 

In  proceedings  supplemental  to  execution,  349. 

LAW, 

Issue  of,  how  tried,  178,  195. 

Note  of  issue  on,  196. 
Furnishing  papers,  196. 
Argument,  196. 
Decision,  197. 
LUNATIC, 

Service  of  summons  on,  112. 

Suits  for,  must  be  in  name  of  committee,  11. 

LIBEL, 

What  necessary  in  pleading,  39. 

LOCAL  ACTIONS, 

Where  triable,  29. 

MANNER, 

Of  entering  judgment,  200.  ^' 

MARRIED  WOMEN, 

See  Parties,  9. 

When  must  be  joined  as  plaintiff  with  husband,  11. 

When  may  be  sued  alone,  16. 

When  not,  17. 
MERITS,  AFFIDAVITS  OF, 

When  necessary  to  prevent  inquest,  171. 

What  to  contain,  172. 
MISJOINDER, 

Of  plaintiffs,  15. 

How  taken  advantage  of,  15. 

Of  actions,  47. 

Of  defendants,  19. 

Of  parties  in  appeals,  to  Court  of  Appeals,  297. 
Of  actions,  47. 


INDEX    TO    PRACTICE.  547 

MORTGAGE, 

Foreclosure  of,  see  title  "Foreclosure  of  Mortgage." 

MOTION, 

To  revive,  when  made,  23. 

Affidavit  for,  23. 

How  made,  23. 

Who  may  make,  23. 

When  to  be  made,  24. 

To  vacate  order  of  arrest,  70. 

To  dissolve  injunction,  88. 

Motion  to  re-adjust  costs,  220. 

To  issue  execution  after  five  years,  224. 

To  change  place  of  trial,  32. 

Ground  for,  32. 

To  discharge  attachment,  95. 

To  strike  out  irrelevant  matter  in  complaint  132. 

In  answer,  150. 

For  judgment  in  sham  answers,  150. 
MOTIONS  IN  GENERAL, 

Special  motions,  what  are,  370. 

Where  made,  374. 

When  made,  375. 

For  irregularity,  375. 

For  relief,  375. 

Staying  proceedings,  375. 

Who  may  stay  proceedings,  376. 

County  Judge  cannot  after  verdict,  376. 

No  stay  for  more  than  20  d's  can  be  granted  out  of  court,  376- 

Affidavits,  376. 

Notice,  377. 

What  to  contain,  377. 

Costs  on,  not  given  unless  asked  for  in  notice,  37S. 

Motion,  argument  of,  378. 

Rule  or  order,  378. 

Rule  by  default,  379. 

Default  for  not  moving,  379. 

Counsel  cannot  endorse  name  on  papers,  379. 

Costs  of,  379. 

When  payable,  379. 

Sum  collected,  380. 

Orders  granted  at  chambers,  381. 

I 


k 


548  INDEX   TO    PRACTICE. 

MOTION  DAYS, 

In  Supreme  Court,  374. 

In  Court  of  Appeals,  310. 
NEW  MATTER, 

How  stated  in  answer,  147. 

In  reply,  153. 
NEW  TRIAL, 

Motion  for,   (see  title  "Exceptions,  bill  of,")  may  be 
granted  on  appeal,  286. 
NONJOINDER, 

Of  actions,  47.  | 

Of  plaintiff,  14.  ^ 

How  taken  advantage  of,  15. 

Of  defendants,  19. 

How  taken  advantage  of,  19. 

Of  party  in  appeals  to  Court  of  Appeals,  295. 
NON-SUIT, 

Before  referees,  192. 

At  trial,  181. 

Plaintiff  may  submit  to,  192. 

Not  after  case  is  closed,  192. 
NOTE  OF  ISSUE. 

For  trial  of  issue,  172.  ^ 

What  must  contain,  172. 

When  filed,  172. 

In  Court  of  Appeals,  308. 

Appeals  from  inferior  courts,  266. 

In  Supreme  Court,  284. 
NOTICE  OF  OBJECT  OF  SUIT, 

In  foreclosure  suit,  321. 

In  partition  suit,  335. 
NOTICE,  IN  GENERAL, 

Must  be  in  writing,  391 

How  served,  391. 

When  by  mail,  392. 

On  attorney,  391. 

When  on  party,  391.  ' 

NOTICE,  i 

Of  offer  to  compromise,  127. 
NOTICE  OF  RETAINER, 

Sufiicient  for  appearance,  392. 


INDEX   TO   PRACTICE.  549 

NOTICE, 

Of  bail,  61. 

Of  exception  to  bail,  62, 

Of  justification  of  bail,  63. 

Of  new  bail,  and  justifying  same,  64. 
NOTICE 

To  produce  papers  on  trial,  172. 
NOTICE 

Of  trial,  170. 

Defendant  may  notice,  170. 

Consequences  of  plaintiff's  omitting  to,  184. 

Of  motion  for  reference,  188. 

Of  argument,  in  appeal  from  inferior  court,  266. 

In  Supreme  Court,  284. 

In  Court  of  Appeals,  308. 

Of  appeal  from  order,  385, 

Of  appeal  from  inferior  courts,  254. 

In  Supreme  Court,  274. 

In  Court  of  Appeals,  298. 

From  orders,  385. 

Of  motions,  generally,  377. 

NOTICE  OF  LIS  PENDENS 
In  foreclosure  suit,  322. 
In  partition  suit,  336. 

OBTAINING 

Copy  complaint,  125. 
OFFER 

Of  defendant  to  compromise,  125. 

OPENING 

Case  to  jury,  179. 
Of  defence,  181.  ' 
ORDERS, 

To  hold  to  bail,  57. 

How  obtained,  see  "  Bail." 

Of  reference,  189. 

Appeals  from,  made  at  special  term,  or  by  single  judge,  373. 

Must  be  entered,  373. 

Appeals  from  to  Court  of  Appeals,  291. 

Within  what  time  appeal  must  be  made,  293. 

For  reference  in  foreclosure  suit,  325. 


550  INDEX   TO    PRACTICE. 

ORDERS 

For  publication  of  summons  against  absent  defendant,  1 14. 

In  partition  suit,  338. 

In  divorce  suits,  342. 

For  judgment  debtor  to  appear  and  answer,  354. 

Order  forbidding  transfer  of  property,  354. 

Service  of  in  proceedings  against  judgment  debtors,  357. 

To  apply  property,  360. 

For  appointment  of  receiver,  360. 

PAPERS, 

Compelling  production  of,   128. 

Notice  to  produce,  172. 

Service  of,  391. 

Preparing,  on  appeal  from  inferior  court,  264.  4 

In  Supreme  Court,  282. 

On  appeal  to  be  furnished,  285. 

In  Court  of  Appeals,  307. 

On  appeals  from  orders,  386. 
PARTICULARS,  BILL  OF, 

See  title  "  Account,  items  of  how  oltained.'''' 
PARTITION, 

Place  of  trial  in,  26. 

Suits  for,  333. 

Practice  in,  333. 

Parties,  334. 

Summons,  334. 

Complaint,  334. 

Verifying  complaint,  335. 

Serving  summons,  335. 

Notice  of  object  of  suit,  335. 

Lis  pendens,  336. 

Proceedings  if  answer  is  put  in,  337. 

Where  no  answer  is  put  in,  337. 

Reference,  338. 

Application  for  judgment,  338. 

Filing  report,  338. 

Costs  in,  338. 
PARTIES, 

How  called  upon  appeal,  254,  272. 

Nonjoinder  of  in  appeal  to  Court  of  Appeals,  295. 


INDEX   TO    PRACTICE.  551 

PARTIES, 

Party  plaintiff,   10. 
Party  defendant,   16. 
Change  of,  21. 

Defect  of  ground  of  demurer,   138. 
Misjoinder,  297. 
PERSONAL  PROPERTY, 

Actions  to  recover  possession  of  when  triable,  26. 

How  changed,  32. 

Bail  in,  55. 

Actions  for,  72. 

Affidavit  for,  72. 

What  to  contain,  73. 

No'ice  to  sheriff,  76. 

Undertaking  upon,  76. 

Defendant  requiring  return,  77, 

Delivery  to  plaintiff,  78. 

Sureties  justifying,  79. 

Claiming  property,  79. 

Sheriff's  return,  80. 
PENALTY, 

Action  to  recover,  where  triable,  27. 
PARTICULARS 

Of  account  how  procured,   130. 

Consequences  of  not  furnishing,    131. 

Further  bill,  131. 

Examination  of,  164. 
PARTIES  TO  AN  ACTION, 

The  party  plaintiff,  9. 

For  foreclosure  of  mortgage,  316. 

Who  must  be  plaintiff,  10. 

In  partition  suits,  334. 

Persons  acting  in  2l  fiduciary  capacity,  10. 

In  divorce  suit?,  340. 

Executors  and  administrators,  10. 

Trustees  of  express  trusts,  10. 

Persons  expressly  authorised  by  statute,  10. 

Married  women,  11. 

Infant,  12. 

Misjoinder,  13. 


552  INDEX  TO    PRACTICE. 

PARTIES  TO  AN  ACTION, 

Actions,  ex  delicto^  14. 

Party  defendant,  16. 

Determining  controversy  as  to,  20. 

Change  of,  21. 

Must  be  subpoenaed  for  trial,   168. 
PEOPLE, 

Actions  by,  9. 

Costs  against,  211. 
PEKSON, 

Execution  against,  222. 
PLAINTIFF, 

Who  must  be,  10. 

In  actions,  ex  contractu,  10. 

Married  women,  11. 

Several  plaintiffs^  12. 

Misjoinder  of,  l.S. 

How  taken  advantage  of,   13. 

Death  of  sole,  13. 

Death  of  one  of  several,  13. 

In  actions,  ex  delicto,  14. 

Effect  of  nonjoinder  of,  14. 

Effect  of  misjoinder  of,  15. 

Transfer  of  interest  by,  22. 

Failing  to  appear  at  trial,  184. 

Failing  to  notice,   185. 

Plaintiff's  costs,  213. 

Plaintiff  in  foreclosure  suits,  316. 

Plaintiff  in  partition  suits,  334. 
PLACE  OF  TRIAL,  25. 
PLEADINGS, 

General  rules  of,  37.  • 

What  they  are,  37. 

What  will  be  sufficient  in,  38, 

Construction  and  effect  of,  41. 

Mistakes  in,  41. 

Amendment  of^  41. 

Variance,  42. 

Error  in,  when  to  be  disregarded,  46. 

Copy  to  be  furnished  for  trial,  171. 


I 


INDEX  TO  PRACTICE.  553 

POINTS, 

In  appeal  from  inferior  courts,  to  be  printed,  265. 

In  Supreme  Court,  283. 
In  Court  of  Appeals,  307. 
POSTAGE, 

On  papers  served  by  mail,  to  be  paid,  392. 
PRACTICE, 

What,  1. 
Sources  of,   1. 
PREPARING 

Appeal  from  inferior  court  for  argument,  264. 
From  Supreme  Court,  282. 
In  Court  of  Appeals,  307. 
PROCEEDINGS,  SPECIAL, 
What  are,  6. 

What  excepted  from -the  Code^  7. 
How  brought,  8. 
PROCEEDINGS, 

On  part  of  defendant  before  answer,  125. 
To  perfect  appeal  from  inferior  courts,  254. 
In  Supreme  Court,  274. 
In  Court  of  Appeals,  298. 
PROMISSORY  NOTES, 

Parties  in  actions  on,  18. 
Costs  in  actions  on,  208. 
PRINTING, 

Case  and  points  on  appeal  from  inferior  court,  265. 
In  Supreme  Court,  283. 
In  Court  of  Appeals,  307. 
PROPERTY, 

Real ;  actions  for,  when  triable,  26. 
Personal,  where,  26. 
PREPARING 

Issues  for  trial,  169. 
Papers  for  appeal,  274. 
For  argument  of  appeal,  284. 
PRODUCTION 

Of  papers,  how  compelled,  128. 
PROPERTY, 

Claim  for  delivery  of,  72, 
Execution  against,  221. 


554  INDEX  TO  PRACTICE. 

PUTTING 

Off  trial,  costs  of,  213. 
QUALIFCATiONS 

Of  bail,  see  title  "  Bail." 
REAL  PROPERTY, 

Place  of  trial  in,  26. 

How  changed,  32. 

Ground  for,  32. 
RECEIVER, 

Of  judgment  debtor,  when,  361. 

Powers  of,  362. 

Duty  of,  362. 

Must  give  security  362. 
REFEREES, 

Trial  by,  186. 

Appointment  of,  189. 

Order  appointing,  189. 

In  proceedings  against  judgment  debtor,  354. 

Duties  of,  354. 
REFERENCE,  186. 

In  what  cases,  186. 

When  taking  account  is  necessary,  187. 

Of  question  of  fact  on  motions,  187. 

Motion  for,  188. 

Affidavit,  188. 

Notice  and  service,  188. 

Affidavit  to  oppose,  188. 

Appointing  referees,  189. 

Order  of,  189. 

Reference  at  circuit,  190. 

Notice  of  reference,  190. 

Appointment  of  time  by  referees,  190. 

Proceedings  on  reference,  190. 

Adjournment,  192. 

Report,  193. 

Must  be  signed  by  at  least  two,  194. 

May  be  excepted  to,  194. 

Received  in  same  manner  as  decision  of  court,  194 

Fees  of  referees,  194. 

Judgment  on  report,  194. 

Case  to  set  aside  report,  241. 


INDEX    TO    PRACTICE.  555 

REFERENCE, 

In  foreclosure  suit,  324. 

In  partition  suits,  338. 

In  divorce  suits,  342. 
RELIEF, 

Demanded  to  be  stated  in  complaint,  104. 
REPLY, 

To  what  plaintiff  may  reply,  153. 

What  to  contain,  153. 

Verifying,  154. 

Irrelevant  matter  in,  how  struck  out,  154. 

Enlarging  time  to  reply,  155. 

Filing  and  serving,  156. 

Effect  of  156. 

Effect  of  not,  157. 

Reply  to  amended  answer,  157. 
REMITTITUR 

From  Court  of  Appeals,  310,  3 11. 

Will  not  be  sent  in  cases  of  default  until  after  10  days,  310. 

REPORT 

Of  clerk  on  assessment,  123. 

Of  referees,  193. 

Of  referee  in  proceedings  against  judgment  debtor,  359, 

Judgment  on,  of  referees,  194. 

Of  sale  in  foreclosure  suit,  331. 

Confirming  same,  331. 
RESPONDENT 

May  dismiss  appeal,  165-306-30S. 
RETAINER, 

Notice  of,  is  an  appearance,  392. 
RETURN 

Of  sheriff  upon  delivering  of  personal  property,  80. 

Of  clerk  on  appeal  from  judgment  of  inferior  court,  262. 

On  appeal  to  Court  of  Appeals,  305. 

See  title  "Appeals  from  judgments  of  inferior  courts,"  and 
"Appeals  to  Court  of  Appeals," 
REVOKING  ORDERS 

Judge  making  may,  382. 
RULE 

For  drawing  pleadings,  37. 

For  writ  of  inquiry,  when,  123. 


556 


INDEX    TO    PRACTICE. 


RULE 


On  decision  of  a  motion,  878. 
On  decision  of  an  appeal,  270. 
By   default   on  motions,  counsel  must  endorse   name   on 

papers,  379. 
On  appeals  from  orders,  38S. 


I 


SALE, 


Under  judgment  of  foreclosure. 

See  "  Foreclosure  of  Mortgage." 
Report  of,  331. 
Time  and  place  of,  329. 
Condition  of,  330. 
Conducting,  330. 
SECURITY 

Of  receiver,  361. 

Not  required  in  appeals  from  orders,  385. 

Upon  injunction,  85. 

Upon  injunction  against  corporations,  86. 

SERVING   CASE. 

On  appeal  from  inferior  court,  265. 
In  Supreme  Court,  283. 
In  Court  of  Appeals,  308. 

SERVICE  OF  PAPERS. 

How  made  in  general,  39L 

On  the  attorney,  39L 

On  the  party,  391. 

Of  summons  or  process,  by  which  a'suit  is  commenced,  110. 

Of  paper  to  bring  party  into  contempt,  391. 

When  may  be  by  mail,  392. 

Postage  must  be  paid,  392. 

Of  subpoena,  173. 

Of  notice  of  motion  for  reference,   188. 

Of  notice  of  appeal,  274. 

Of  orders  in  proceedings  against  judgment  debtors,  357. 

Of  rules  on  motions,  378. 

Of  complaint,   110. 
SETTING 

Aside  adjustment  of  costs,  motion  for,  220. 

Default  in  Court  of  Appeals,  310. 


INDEX   TO    PRACTICE.  557 

SETTLEMENT 

Of  suit,  costs  in,  219. 

Of  case,  235. 

Of  bill  of  exceptions,  232. 

Of  demurrer  to  evidence,  246. 

Of  Special  verdict,  239. 
SHAM  ANSWER, 

And  pleadings  may  be  stricken  out  on  motion,  150. 

SHERIFF. 

Actions  against  where  triable,  27,  28. 

Duty  of  on  order  for  arrest  of  defendant,  60. 

Must  put  in  bail,  61. 

Liability  of  as  bail,  66. 

Duty  of  in  action  to  recover  personal  property,  76. 

In  serving  summons,  llS. 

Proceedings  to  compel  service  by,  118. 

Sale  under  judgment  of  foreclosure,  328. 

SLANDER, 

What  necessary  in  pleading,  39. 

SPECIAL  PROCEEDINGS, 

What  are,  6. 

What  excepted  from  code,  7. 

How  brought,  8. 

Costs  on  review  of,  212, 
SPECIAL  MOTIONS.     See  title  "  Motions  in  general." 
SPECIAL  VERDICT, 

What,  183. 

Drawing,  238. 

Staying  proceedings  on  judgment,  237. 

Amendments  to  settling  and  filing,  239. 
STAYING  PROCEEDINGS, 

To  move  for  change  of  place  of  trial,  35. 
STATING 

Cause  of  action,  in  complaint,  103. 

Defence  in  an  answer,  147. 
STRIKING 

Cause  from  calendar  for  non-service  of  appeal  papers, 

265,  283,  373. 
SUBMITTING 

Controversy  without  action,  248. 


I 


I 


558  INDZX  TO   PRACTICE. 

SUBMITTING, 

Drawing  case,  24S. 

Submission,  249. 

Judgment  on,  249. 

Case  on  printed  arguments  in  Court  of  Appeals,  310. 
SUBPCENA, 

For  witness,  173. 

Subpoena  ticket,  173. 

Serving,  173. 

Duces  tecum,  174.  ^ 

SUIT, 

How  commenced,  49. 

For  foreclosure  of  mortgage,  see  title  "Foreclosure  of 
Mortgage ;"   for  partition  see  title   '*  Partition  ;"  for 
divorce,  see  title  "  Divorce." 
SUMMING  UP, 

On  trial,  182. 
SUMMONS, 

When  amendable,  43. 

When  errors  in  disregarded,  43. 

What  it  must  contain,  96. 

Limiting  time  of  service  of,  98. 

Service,  how  made,  112. 

Upon  corporators,  112. 

Upon  minors,  112. 

Upon  idiots,  insane  persons  and  habitual  drunkards,  112. 

Upon  absent  or  concealed  defendant,  113.  . 

Service  of  out  of  the  state,  115.  " 

Who  may  serve  summons,  118. 

Proof  of  service  of,  118.  _  J 

In  foreclosure  suit,  318.  j| 

In  partition  suit,  335. 

In  divorce  suits,  341. 
SUPPLEMENTAL 

Complaint,  108. 

Proceedings  on  execution  returned,  346. 
SURRENDER 

By  bail,  68. 
SURETIES 

To  undertaking,  on  appeal  from  inferior  court,  excepting 
to,  257. 


INDEX   TO    PRACTICE.  559 

SURETIES, 

How  to  justify,  260. 

Giving  other  sureties,  260. 

Allowance  of    261. 

Qualifications  of,  261. 

On  appeal  from  judgment  of  Supreme  Court,  275. 

To  stay  execution  of  judgment,  275. 

Must  be  proved  or  acknowledged,  277. 

Sum  to  be  fixed  bygudge,  276. 

Excepting  to,  279. 

How  to  justify,  280. 

Giving  other  sureties,  280. 

Allowance  of,  281. 

Qualifications  of,  281. 

On  appeals  to  Court  of  Appeals,  excepting  to,  303. 

How  to  justify,  303. 

Giving  other  sureties,  304. 

Allowance  of,  305. 

Qualifications  of,  305. 

Upon  claim  for  delivery  of  personal  property,  76. 

How  to  justify,  79. 

TICKET, 

Subpoena,  173. 

TIME, 

To  answer  how  enlarged,  151. 

To  demurrer,  141. 

Enlarging  time  to,  142. 

To  reply,  enlarging,  155. 

To  justify  bail,  63. 

To  amend,  108. 

Of  service  of  notices  and  papers  by  mail,  392. 

TRANSCRIPTS, 

From  dockets  of  judgments,  202. 
Of  justices'  judgments,  426. 

TRANSITORY 

Actions,  where  triable,  29. 
TRANSMITTING 

Judgment  roll,  on  appeal  from  inferior  court,  262. 
In  Court  of  Appeals,  305. 


I 


560  INDEX  TO    rUACTICE. 

TRESPASS 

To  lands,  place  of  trial  in,  26. 
TRIAL 

Of  issues,  160. 
Preparation  for,  169. 
By  a  jury,  169,  178. 
By  the  court,  175. 
By  relerees,  186. 

Consequences  of  not  proceeding  to,  IS'. 
How  conducted,  178. 
Notice  of,  170. 

Notice  to  produce  papers  on,  172. 
Copy  pleadings  for,  171. 
By  jury,  how  waived,  176. 
Place  of,  25. 
In  local  action,  25. 
How  changed  in,  27. 

In  transitory,  29.  ^ 

How  changed,  30. 
In  what  cases,  31. 
How  obtained,  32. 
Ground  for,  32. 
'  When  made,  34. 

TRUSTEE, 

Action  by,  10. 

Costs  in  actions  by  and  against,  203.  ■ 

UNDERTAKING 

To  obtain  order  of  arrest,  59. 

By  defendant  upon  arrest,  61.  j 

By  plaintiff  to  obtain  delivery  of  personal  property,  76.  'J 

Of  defendant  requiring  return  of  property,  77. 

Indemnifying  sheriff  against  claim  to,  80.  j 

For  injunction,  85.  * 

Against  corporations,  86. 

For  attachment,  91.  ^ 

For  discharge  of  attachment,  95. 

Not  required  in  appeals  from  orders,  385. 

Upon  appeals  from  Inferior  Courts,  255,  261. 

To  stay  execution  of  judgment,  256. 

Must  be  proved  or  acknowledged,  257. 


) 


INDEX  TO  PRACTICE.  661 

UNDERTAKING, 

Amount  to  be  fixed  by  judge,  256. 

Copy  must  be  served,  259. 

Affidavit  annexed,  259. 

Excepting  to  sureties  of,  257. 

How  sureties  to  justify,  260. 

Other  sureties,  260. 

Filing,  261. 

Upon  appeal  from  judgment  of  Supreme  Court,  275. 

To  stay  execution,  275. 

Must  be  proved  or  acknowledged,  277. 

Amount  to  be  fixed  by  the  judge,  276. 

Copy  must  be  served,  279. 

Affidavit  annexed,  273. 

Excepting  to  sureties,  279. 

How  to  justify,  260. 

Other  sureties,  280. 

Filing,  281. 

Upon  appeals  to  Court  of  Appeals,  298. 

To  stay  execution  of  judgment,  299. 

Sum  to  be  fixed,  299. 

Copy  must  be  served,  302. 

Affidavit  to  be  annexed,  302. 

Excepting  to  sureties,  303. 

How  to  justify,  303. 

Other  sureties,  304. 

Filing,  305. 

On  arrest  of  Judgment  Debtor,  356. 

On  answer  of  title  in  justice's  court. 
VARIANCE, 

What,  40. 

When  disregarded  in  pleading,  41. 
VENUE, 

See  "  Place  of  TRIAL,"  25. 
VERDICT, 

General,  what,  182. 

Special,  what,  183. 

In  what  actions,  183. 

Assessing  damages,  183. 

Filing  and  entering,  184. 
36 


562  INDEX  TO  PRACTICE. 

VERDICT, 

Interest  on,  218. 

Special  mode  of  making  up,  to  be  heard  in  appeal,  237. 

Staying  proceedings,  237. 

Drawing,  238. 

Amendments  to,  settling  and  filing,  239. 
VERIFICATION, 

Of  complaint,  when,  106. 

In  partition  suits,  actions  for  service,  335. 

Subsequent  pleadings,  answer,  when,  149. 

Reply  when,  154. 
WARRANT, 

Attachment  of,  see  title  "  Attachment." 

To  arrest  judgment  debtor,  355. 
WITNESS, 

Examination  of  on  a  commission,  162. 

De  bene  esse,  163. 

Party  as,  164. 

Examination  of  before  trial,  166. 

At  the  trial,  168. 

Subpoenaing,  173. 
WRIT  OF  ERROR, 

Appeal  substituted  for,  252. 
WRIT  OF  INQUIRY, 

When,  123. 
WRITINGS, 

Procuring  inspection  of,  123, 


INDEX  TO  PRACTICAL  FORMS. 


ABSENT 

Defendant,  affidavit  for  order  of  publication  against,  438. 
Order  for  publication  against,  439. 

ATTACHMENT, 

Affidavit  for,  440. 

Undertaking  for,  442. 

Warrant  of,  442. 

Notice  of  motion  to  discharge,  443. 

Undertaking  to  discharge,  443. 

ACCOUNT, 

Notice  of  demand  for  copy  of,  431. 
Complaint  in  action  upon,  467. 

ACKNOWLEDGMENT 

Of  undertaking  for  injunction,  444. 
Of  undertaking  on  appeal,  496. 

AFFIRMANCE  OF  JUDGMENT. 
Entry  of  judgment  on,  480. 

ACTION. 

Petition  to  continue,  on  death  of  party,  507. 

Affidavit  annexed,  508. 

Notice  of  motion  on,  508. 

Order  thereupon,  508. 

Demand  to  have,  tried  in  proper  county,  513. 


564  INDEX   TO   FORMS, 

AFFIDAVIT, 

Annexed  to  copy  account  furnished,  431. 

To  move  to  change  place  of  trial,  432. 

Of  merits,  433. 

To  procure  order  for  publication  against  a  defendant  who 
cannot  be  personally  saved,  438. 

OtsherifT,  of  failure  to  serve,  439. 

Of  service  of  summons,  440. 

For  attachment,  440. 

Annexed  to  undertaking  for  injunction,  444. 

Annexed  to  undertaking  for  injunction  against  a  corpora- 
tion, 446. 

On  claim  of  delivery  of  personal  property,  447. 

Of  claim  by  third  person  to  personal  property,  449. 

To  hold  to  bail,  451. 

For  order  of  reference  in  foreclosure  suit,  471. 

Of  filing  notice  of  lis  pendens,  474. 

Annexed  to  undertaking  on  appeal,  496. 

To  procure  order  for  judgment  debtor  to  appear  and  an- 
swer, 499. 

To  procure  order  for  third  person  to  appear  and  answer, 
500. 

To  procure  order  to  examine  judgment  debtor  before  re- 
turn of  execution,  501. 

To  procure  warrant  against  judgment  debtor,  502. 

To  petition  to  continue  action,  508. 

To  petition  for  appointment  of  guardian  for  infant,  510. 

To  procure  order  to  file  complaint,  515. 

APPEAL,  ^ 

Judgments  upon,  see  title  "Judgments." 

Notice  of,  to  Supreme  Court,  from   judgment  of  same 

court,  493.  j 

The  like  from  judgment  of  an  inferior  court,  493.  * 

The  like  on  judgment  entered  on  report  of  referees,  494. 
The  like  to  the  Court  of  Appeals,  494. 
The  like  from  an  order,  495. 
Undertaking  to  pay  costs  on,  495. 
Affidavit  annexed  to,  496. 
Acknowledgment  annexed,  496. 


INDEX    TO    FORMS.  565 

APPROVAL 

Of  judge  to  undertaking,  446. 

ARREST, 

Affidavit  for  order  to,  451. 

Order  for,  452,  and  see  title  *'  Bail." 

ATTORNEY'S  BILL, 

Complaint  for,  465. 

BAIL, 

Affidavit  to  hold  to,  451. 
Undertaking  to  procure  order  to  hold  to,  452. 
Order  to  hold  to  452. 
Undertaking  of  453. 

Undertaking  in  action  to  recover  personal  propert}-,  45'.'. 
Notice  of  accepting  to,  454. 
Certificate  of  sheriff  of  deposit  in  lieu  of,  454. 
Certificate  of  clerk  thereupon,  454. 
Notice  of  motion  to  vacate  or  mitigate,  456. 
Notice  of  justification  of,  455. 
Notice  of  other  bail,  456. 
Certificate  of  surrender  by,  456. 
Notice  to  plaintiff  that  bail  will  be  exonerated,  546. 
Order  exonerating  bail,  457. 
BILLS  OF  EXCHANGE, 

Complaints  on,  see  title  "  Complaint." 

BILL  OF  EXCEPTIONS, 

Order  to  stay  proceedings  to  make,  514. 

BOND, 

Of  receiver,  506. 

Of  indemnity  to  sheriff  upon  claim  to  third  person  to  pro- 
perty taken  on  attachment,  513. 

CERTIFICATE, 

Of  sheriff,  of  deposite  in  lieu  of  bail,  454. 
Of  clerk  thereupon,  454. 
Of  surrender  of  principal  by  bail,  456. 
Of  clerk  that  complaint  is  not  filed,  516. 


566  INDEX   TO  FORMS. 

CASE, 

Order  to  stay  proceedings  to  make,  514. 

CHANGING, 

Place  of  trial,  affidavit  for,  432. 
Place  of  trial,  notice  for,  433. 

COPY  ACCOUNT, 

Demand  for,  431. 
Furnished,  431. 
Affidavit  annexed,  431. 

COSTS, 

Notice  of  adjustment,  436. 
Order  for  extra  allowance  of,  479. 

COMPLAINT, 

For  monies  generally,  457. 

On  promissory  notes,  against  all  parties,  457. 

On  promissory  note,  against  endorser,  458. 

On  promissory  note,  endorsee  against  maker,  459. 

On  promissory  note  payee  or  bearer,  against  maker,  459. 

For  money  paid,  &c.,  460. 

On  bill  of  exchange,  against  acceptor,  460. 

On  inland  bill  of  exchange,  against  drawers  and  endorsers 
for  non-acceptance,  461. 

On  inland  bill  of  exchange,  against  endorser  for  non- 
acceptance,  461. 

The  like  for  non-payment,  462. 

On  inland  bill  of  exchange,  payee  against  drawer,  for 
non-payment,  463. 

On  foreign  bill,  against  endorser,  for  non-acceptance,  463. 

For  work  and  labor,  464. 

For  taking  personal  property,  465. 

On  attorney's  bill,  465. 

To  recover  possession  of  personal  property,  466. 

For  detaining  personal  property,  466. 

To  recover  possession  of  real  property,  466. 

For  an  account,  467. 

For  goods  sold  at  different  times,  467. 

For  work,  labor,  and  materials  furnished,  468. 

For  goods  sold,  where  the  price  is  agreed  upon,  468. 


INDEX   TO    FORMS.  567 

COMPLAINT, 

For  the  foreclosure  of  a  mortgage,  469. 

Affidavit  to  procure  order  to  file,  415. 
Certificate  annexed,  516. 
Order  to  file  complaint,  516. 

CONFESSION, 

Judgment  by,  483. 

COMPROMISE, 

Notice  of  offer  to,  420. 

Notice  of  acceptance  of  offer  to,  430. 

DECISION, 

Of  cause,  tried  by  the  court  without  a  jury,  478. 

DEMAND, 

To  have  action  tried  in  proper  county,  513. 

EXAMINATION, 

Of  party  as  a  witness,  notice  of,  435. 

EXECUTION, 

Against  the  person,  487. 

Against  the  property,  487. 

For  delivery  of  the  possession  of  real  property  with  dam- 
aces,  488. 

For  delivery  of  personal  property,  without  damages  or 
costs,  489. 

The  like  with  damages,  489. 

The  like,  and  for  value  of  the  property,  if  delivery  cannot 
be  had,  490. 

Upon  judgment  of  affirmance  in  Court  of  Appeals,  490. 

The  like  on  reversal,  491. 

For  costs  of  motion,  492. 

FAILURE  TO  ANSWER, 

Judgment  on,  482. 

FORECLOSURE  OF  MORTGAGE, 

Complaint  for,  469. 

Notice  of  object  of  suit,  470. 

Notice  of  lis  pendens,  471. 


5C8  INDEX   TO    FORMS. 

FORECLOSUE  OF  MORTGAGE, 

Affidavit,  for  order  of  reference,  471. 

Order  of  reference,  all  due,  no  infants  or  absent  defend- 
ants, 472. 

Order  of  reference,  all  due,  and   absent  defendants,  472. 

Order  of  reference,  all  due,  infant  defendants  but  no  ab- 
sentees, 473. 

Order  of  reference,  part  not  due,  474. 

Affidavit  of  filing  notice  of  lis  pendens,  474. 

Judgment  of  and  sale,  475. 

Judgment,  part  only  due,  premises  can  be  sold  in  par- 
cels, 476. 

GOODS  SOLD, 

Complaint  for,  468. 

INFANT, 

Petition  for  appointment  of  guardian  of,  plaintiff,  509. 

Consent  endorsed,  510. 

Affidavit  annexed,  510. 

Certificate  of  judge  endorsed,  510. 

Order  thereupon,  51 K 

Petition  for  appointment  of  guardian  of  infant  defend- 
ant, 511. 

Consent  endorsed,  511. 

Petition  by  plaintiff  for  appointment  of  guardian  for  in- 
fant defendant,  512. 

Order  to  be  entered  thereon,  512. 

INJUNCTION, 

Undertaking  on  granting,  444. 

By  order,  445. 

Undertaking  for  against  a  corporation,  445. 

Notice  of  motion  to  dissolve,  446. 

JUDGMENT  DEBTOR, 

Affidavit  to  obtain  order  for,  to  appear  and  answer,  499. 
Order  for,  to  appear  and  answer,  500. 
Affidavit  for  order,  for  third   person  tD   appear  and  an- 
swer, 500, 
Order  to  examine  third  person,  501. 


INDEX  TO    FORMS.  569 

JUDGMENT  DEBTOR. 

Affidavit  to  obtain  order  to  examine  before  return  of  exe- 
cution, 501. 
Order  thereupon,  502. 
Affidavit  to  procure  warrant  against,  502. 
Warrant  against,  503. 
Undertaking  by,  on  being  arrested,  504. 
Order  forbidding  transfer  of  property,  504. 
Order  to  apply  property  of,  505. 
Order  for  appointment  of  receiver,  505. 
Receiver's  bond,  506. 

JUDGMENT, 

Notice  of  application  for,  435. 

Notice  for  on  frivolous  demurrer,  435. 

In  action  to  foreclosure  a  mortgage, see  title  "Foreclosure 
of  mortgage." 

On  trial  of  issue  of  fact,  479. 

On  verdict  of  a  jury,  479. 

On  decision  of  court,  jury  trial  waived,  480. 

On  report  of  referees,  480. 

Of  affirmance  in  Supreme  Court,  upon  an  appeal  from  a 
judgment  of  an  inferior  court,  480. 

The  like  on  reversal,  481. 

In  Supreme  Court,  upon  bill  of  exceptions,  and  appeal 
from  a  judgment  of  a  single  judge,  and  new  trial  de- 
nied, 481. 

In  Supreme  Court,  upon  case  made  to  set  aside  report 
of  referees,  and  appeal  therefrom,  and  report  not  set 
aside,  481. 

On  failure  to  answer,  482. 

Statement  for,  by  confession,  483. 

For  plaintiff  in  an  action  to  recover  real  property,  483. 

The  like  on  verdict  for  defendant,  484. 

For  plaintiff  in  action  to  recover  personal  property,  with 
damages  for  withholding,  484. 

The  like  when  property  has  not  been  delivered,  484. 

The  like  on  verdict  for  defendant,  property  not  deliver- 
ed, 485. 


570  INDEX    TO    FORMS. 

JUDGMENT. 

The  like  where  property  has  been  delivered^  and  dam- 
ages, 485. 

The  like  when  property  has  been  delivered  and  defendant 
waives  a  return,  485. 

Entry  of  in  Supreme  Court,  upon  remittitur  from  Court 
of  Appeals,  on  affirmance,  486. 

The  like  on  reversal,  486. 

JUSTICE'S  COURT, 

Undertaking  upon  answer  of  title,  516.  1 

Approval  of  justice  endorsed,  517. 

The  like  in  action  where  defendant  is  arrested,  517. 


MERITS, 

Affidavit  of,  433. 

MONEY, 

Complaint  to  recover,  457, 
For  money  paid,  &c.,  460. 

MORTGAGE, 

See  title  "  Foreclosure  of  Mortgage." 

MOTION, 

Execution  for  cost  of,  492. 

Notice  of,  see  title  "  Notice." 

To  change  place  of  trial,  notice  of,  433. 

Affidavit  for,  432. 

For  judgment,  frivolous  demurrer,  notice  of,  435. 

To  discharge  attachment,  notice  of,  443. 

To  dissolve  injunction,  notice  of,  446. 

To  vacate  order  of  arrest,  notice  of,  455. 

NOTICE 

Of  demand  of  copy  complaint,  429. 

Of  demand  to  have  action  tried  in  proper  county,  429. 

Of  offer  to  compromise,  430. 

Of  acceptance  of  offer,  430. 

Of  demand  of  a  copy  of  an  account,  431.  "^ 

Of  motion  to  change  place  of  trial,  433*  ;i 

Of  trial  and  inquest,  433.  '| 

To  produce  papers  on  trial,  434.  | 


ii 


INDEX   TO    FORMS.  571 

NOTICE 

Of  application  for  judgment,  defendant  having  appeared, 

435. 
Of  motion  for  judgment,  frivilous  demurrer,  435. 
Of  examination  of  party  as  a  witness,  435. 
Of  application   to  have  costs  inserted  in  entry  of  judg- 
ment, 436. 
Another  form,  436. 

Of  motion  to  discharge  attachment,  443. 
Of  motion  to  dissolve  injunction,  446. 
To  sheriff  requiring  delivery  of  personal  property,  448. 
Of  claim  to  personal  property  by  third  person,  448. 
By  sheriff  of  claim  to  personal  property  by  third  person, 

449. 
Of  excepting  to  sureties  in  action  for  delivery  of  personal 

property,  450. 
Requiring  return  of  personal  property  to  defendant,  450. 
Of  excepting  to  bail,  454. 

Of  motion  to  vacate  or  modify  order  of  arrest,  455. 
Of  justification  of  bail,  455. 
Of  other  bail,  456. 

To  plaintiffthat  bail  will  be  exonerated,  456. 
Of  object  of  suit,  in  action  for  foreclosure  of  mortgage, 

470. 
Of  lis  pendens,  471. 

Of  appeal  to  general  term  of  Supreme  Court  from  a  judg- 
ment of  the  same  court,  493. 
Of  appeal  to  Supreme  Court  from  a  judgment  of  an  infe- 
rior court,  493. 
Of  appeal  from  judgment   entered  on  report  of  referees, 

494. 
Of  appeal  to  Court  of  Appeals,  494. 
Of  appeal  to  general  term  from  an  order,  495. 
Of  motion  to  continue  action,  508. 

ORDER, 

Changing  place  of  trial,  533. 

For  publication  against  absent  defendant,  439. 

Injunction,  by,  445. 

For  arrest  of  defendant, 452. 

Exonerating  bail,  457. 


572  INDEX    TO   FORMS. 

ORDER, 

Of  reference  in  foreclosure  suit,  see  title  "Foreclosure  of 
Mortgage." 

For  extra  allowance  of  costs,  479. 

For  judgment  debtor  to  appear  and  answer,  500. 

To  examine  third  person,  501. 

To  examine  judgment  debtor,  before    return  of  execu- 
tion 501. 

Forbidding  transfer  of  property,  504.  M 

To  apply  property  of  judgment  debtor,  505. 

For  appointment  of  receiver  of  judgment  debtor,  505. 

To  continue  action,  508.  , 

For  appointment  of  guardian,  511,  512.  J 

Staying  proceedings,    to   make  a   case    of  bill  of  excep-  V 

tions,  514. 

The  like  on  trial  by  a  judge  without  a  jury,  515. 

The  like  on  trial  by  referees,  515. 

PAPERS, 

Notice  to  produce  a  trial,  434. 

PERSONAL  PROPERTY, 

Affidavit  on  claim  of  delivery  of,  447. 

Undertaking  on,  447. 

Approval  by  sheriff  of,  448. 

Notice  to  sheriff,  requiring  deliver}-  of,  448. 

Of  claim  by  third  person,  448. 

Affidavit  of  claim  by  third  person,  449. 

Notice  by  sheriff  of  claim  by  third  person,  449. 

Undertaking  to  indemnify   sheriff  against  claim   by  third 

person,  449. 
Notice  of  excepting  to  sureties  in  action  for,  450. 
Notice  to  sheriff  requiring  return  of  to  defendant,  450. 
Undertaking  thereupon,  451. 
Complaint  in  action  for  taking,  465. 

"  "       to  recover  possession  of  466. 

«  "       for  detaining,  466. 

Judgments  in  actions  for,  see  title  "Judgments." 
Executions  in  actions  for,  see  title  "Executions." 

i 


i 

J 


INDEX   TO    FORMS.  573 

PETITION 

To  continue   action  against  representatives  of  deceased 

defendant,  507. 
Affidavit  annexed,  50S.     See  title  "Actions." 
For  appointment  of  guardian  of  infant  plaintiff,  see  title 
"  Infant." 

PLACE  OF  TRIAL, 

Affidavit  for  motion  to  change,  432. 
Notice  of  motion  to  chanofe,  433. 

PROMISSORY  NOTES, 

Complaints  on,  see  title  "  Complaint." 

REAL  PROPERTY, 

Complaint  in  action  to  recover  possession  of,  466. 

Judgments  in  actions  for,  483. 

Executions  upon  judgment  for  delivery  of,  48S. 

REFERENCE, 

Judgment  on  report  of  referees,  480. 

REFEREES, 

Report  of,  506. 

Order  to  stay  proceedings  to  make  case  to  set  aside,  515. 

RECEIVER, 

Order  for  appointment  of,  505. 
Bond  of,  506. 

REMITTITUR, 

Judgment  on,  486. 

REVERSAL, 

Entry  of  judgment  on,  481. 

SUMMONS 

Against  absent  or  concealed  defendant,  436. 
For  relief,  437. 

For  money  demand  on  contract,  437. 
For  like,  complaint  not  served,  433. 
Affidavit  of  service  of,  440. 


574  INDEX    TO    FORMS. 

SHERIFF, 

Bond  to  indemnify  upon  claim  of  third  person  of  property 
taken  upon  attachment,  513. 

TRIAL. 

Affidavit  for  motion  to  change  place  of,  432. 

Notice  of  motion  to  change  place  of,  433. 

Notice  of,  433. 

By  court,  decision  on,  478. 

By  court,  judgment  on,  480. 

By  referees,  judgment  on,  480. 

UNDERTAKING, 

On  procuring  attachment,  442. 

On  discharging  attachment,  443. 

On  granting  injunction,  444. 

For  injunction  against  a  corporation,  445. 

On  claim  of  delivery  of  personal  property,  447. 

Approval  by  sheriff",  448. 

To  indemnify  sheriff  against  claim  of  third  person  to  per- 
sonal property,  449. 

By  defendant  requiring  return  of  personal  property,  351, 

Of  bail,  453. 

Of  bail  in  action  to  recover  personal  property,  453. 

On  appeal  to  pay  costs,  496. 

To  stay  execution  on  appeal,  497. 

On  appeal  from  judgment  directing  delivery  of  property, 
497. 

On  appeal  from  judgment  directing  delivery  of  real  pro- 
perty, 498. 

On  appeal  from  judgment  for  sale  of  mortgaged  premises, 
498. 

Of  judgment  debtor,  on  being  arrested,  504. 

By  plaintiff  to  prosecute  suits  concerning  attached  pro- 
perty, 513. 

On  answer  of  title  in  justices'  court,  516. 


INDEX   TO    FORMS.  575 


WARRANT 

Of  attachment,  442. 

To  arrest  judgment  debtor,  503. 

WORK  AND  LABOR, 

Complaint  for,  464. 

The  like,  and  materials  furnished,  468. 


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